certain time is to be allowed to an indorser in which to receive notice, the same time should be given him to pay the demand in because otherwise it would be saying that he was entitled to receive the notice for his benefit, and at the same time declaring that he should be precluded from taking any advantage from it.(o) But it must be observed that it has been held that the maker is only liable after a demand, when a demand is necessary,(p) which must be made at a reasonable time, (q) and an indorser after the same, and also after notice has been deposited where, according to the ordinary method of transportation, it will reach him in due time.(r) With regard to what hour shall

(0) In Shed v. Brett, 1 Pick. 401, Parker, C. J. said: "The argument is, that notice of the non-payment is essential to the plaintiff's right of action; that it is necessary to aver it in the declaration as a fact existing and that, as the case shows this could not be true, the plaintiff has failed in an essential point. But this argument proceeds upon the ground that there must be an actual reception of notice before the plaintiff can sue; and this is certainly fallacious. If the putting the letter into the post-office is notice in itself, which we have shown, then it was given before the com. mencement of the suit. And it would be mischievous to decide otherwise, for every plaintiff's right of action would commence at different times, according to the distance of the party sued; and the time of suing must be conjectured, as it cannot be known when the notice will be actually received. Besides, if the object of waiting be to give the party opportunity to take up the note, there must be a sort of double usance, for the holder must wait till his letter is received, and for a reasonable time afterwards for the party receiving it to come and pay the money. Who would take a bill or note remitted from New Orleans if this doctrine be correct? And if the parties liable be beyond the sea, such instruments would be mere waste paper. If the bill should not be accepted, or the indorsed note not paid, the unfortunate holder, with property be longing to the drawer or indorser before his eyes, must remain an idle spectator of the scramble of other creditors for it, or suffer it to be withdrawn by the debtor himself, without the power of arresting it. This cannot be sound doctrine; an averment of notice will be sufficiently proved by showing that the steps necessary to give the notice have been taken; if subsequently received, it will relate to the time when it was sent; if never received, the fact of having put it in the proper train is enough."

(p) Greeley v. Thurston, 4 Greenl. 479; Veazie Bank v. Winn, 40 Maine, 62. In Pierce v. Cate, 12 Cush. 190, Shaw, C. J. said: "The rule in regard to notes like the one in question is, that the note is payable at any time on actual demand, on the last day of grace; and if such actual presentment and demand is so made, and payment is not made, the maker is in default, and notice of dishonor may forthwith be given to the indorser. But if no presentment or demand is made by the holder upon the maker, the latter is not in default till the end of the business day." In Butler v Kimball, 5 Met. 94, it was held that the action might be maintained when the writ is made after sunset, and delivered to the sheriff the next day, although there is no demand before the writ is made.

(9) See the cases cited infra, p. 414, note s.

(r) Manchester Bank v. Fellows, 8 Fost. 302. In New England Bank v. Lewis, Pick. 125, the action was brought before notice to the indorser, though it was received

be deemed reasonable, the same rule would apply here as in ordinary cases,(s) and the burden of proof is upon the holder to show a demand at a reasonable hour,() and, in the case of an indorser, after notice has been sent. (u) Whether the law is the

by him on the same day, and had been put into the hands of the notary before the writ was given to the sheriff. Held, that the suit was prematurely brought. See Stanton v. Blossom, 14 Mass. 116.

(s) In Lunt v. Adams, 17 Maine, 230, the suit was brought after demand made at 8 A. M. Held premature. In Park v. Page, cited 1 Met. 48, and in Staples v. Franklin Bank, 1 Met. 43, the writs were served at 11 A. M., and it was held that the suits were properly brought. So in McKenzie . Durant, 9 Rich. 61, where the writ was served at 4 P. M. Shed r. Brett, 1 Pick. 401, where the action was commenced in the evening. In Whitwell v. Brigham, 19 Pick. 117, an acceptor for the drawer's accommodation took up the bill on the second day, and commenced a suit against the drawer on the third. Held not premature. As to what is considered a reasonable hour of the day at which to make a demand, see infra, p. 417, note a, &c. It will be seen that, when a note is payable at a bank, a presentment there at any time within banking hours is to be considered reasonable. The same rule has been applied to the case under consideration, and it has been held, in the following cases, that the maker or indorser of a note payable at a bank was not liable till after the close of banking hours. Boston Bank v. Hodges, 9 Pick. 420, where the hours were from 9 to 2, and an action brought at 18 minutes past 9 was held premature. So Church v. Clark, 21 id. 310, where the writ was served at 1 minute past 12 A. M. The demand on the cashier at the bank, but after business hours, was held proper in Flint v. Rogers, 15 Maine, 67. In Staples v. Franklin Bank, 1 Met. 43, an action against a bank on its own post-note, it was contended that the bank was not liable till after the close of business hours, and that the same rules applied as in case of a note payable there; but Shaw, C. J. said: "It may be proper to make a remark on the point, that some of the cases in Massachu setts manifestly go upon the ground, that when a third person has accepted a bill or made a note payable at a bank, or when, from circumstances, it may be inferred that the parties intended that the note should be paid at a bank, the maker has the whole of the usual time of banking hours to pay it. This proceeds upon the ground that the parties have entered into an express or implied agreement that the note shall be so paid and treated. But when the bank itself has undertaken to pay a sum on any given day, they are bound, like any other promisor, to pay on demand on that day; and the only difference, in this respect, between a bank and an individual is this, that what would be reasonable time for a demand in case of individuals is fixed, in case of a bank, by their known usual hours of being open for business. This is the case in regard to common bank-notes, and it would be most pernicious, in regard to them, to establish a different rule, or raise a doubt respecting it. And a post-note, when by the lapse of time and the force of the contract it has become payable on demand, stands in this respect on the same footing with a bank-note, which is payable on demand in its

terms."

() Veazie Bank r. Winn, 40 Maine, 62.

(u) Manchester Bank v. Fellows, 8 Foster, 302, where Eastman, J. said: "If the suit is commenced a day after the time that notice is given, or at any future time after notice, the proof is readily made; because, where the notice is proved, it shows for itself to have been before suit; but where, as in this case, the suit is instituted on the day of the notice, no such conclusion is apparent. The evidence does not show that

same with reference to notes on which no grace is allowed, does not seem to be settled.(v) We incline to hold, however, both on reason and on what seems to be the weight of authority, that a note without grace may be demanded within business hours of the day of maturity, and, if payment is refused, an action may be brought against the maker, or notice be given to an indorser, and an action brought against him, on the same day. (w) The question has never passed under adjudication in England, but in one of the early cases we find a difference of opinion on the subject between Lord Kenyon and Mr. Justice Buller.(x)

the notice was given before the suit was commenced, and the court cannot presume it. And in all such cases the plaintiff must prove that the demand and notice were before the suits were brought, otherwise it does not appear that they have a cause of action. The plaintiffs in this case having produced no evidence showing that the notice was put into the post-office at Boston before the writ was served, it does not appear that a cause of action existed at the time of the commencement of the suit, and the action necessarily fails."

(v) In Staples v. Franklin Bank, 1 Met. 43, Shaw, C. J. said: “A different construction may perhaps apply when a note is payable without grace. As grace was originally matter of indulgence and courtesy, and not of contract, it perhaps may be contended that, although a debtor has the whole of the last day of the credit stipulated for by contract to make payment, yet a different rule may apply to grace, which is not part of the contract. So when the third day of grace falls on Sunday, as the right of one or the other of the parties must yield, it shall be that of the one who claims indulgence, and not of him who claims of right; whereas, if a bond were to be payable on Sunday, the debtor would have till the close of Monday to pay it. Some of the cases appear to turn on this distinction." In Taylor v. Jacoby, 2 Penn. State, 495, an actior on a note where no grace was allowed, it was held that the note was not due, for the purpose of commencing suit or entering judgment, until after the termination of the day of payment. It has already been seen, that when a note without grace falls due on Sunday, it is not payable until the next secular day. Supra, p. 402.

(w) In Staples v. Franklin Bank, cited in the preceding note, the court appears to incline to the views expressed in the text.

(r) Leftley v. Mills, 4 T. R. 170. In Colkett v. Freeman, 2 T. R. 59, it was held that an express refusal in the morning to a holder to pay a bill constituted a complete act of bankruptcy, though several of the jury, which was a special one, said that by the practice of London merchants the payor has the whole day of maturity till five o'clock, P. M., within which to pay. In Hume v. Peploe, 8 East, 168, a plea of a tender of all the money due on a bill, after the day of payment, was held not to be a good plea in bar, because it did not show a performance of the contract. So Poole ". Tumbridge. 2 M. & W. 223, where Lord Abinger said: "I will not say that if this case arose, that the acceptor went on the day the bill became due to the house of the holder for the purpose of paying it, and could not find him, but on a subsequent day, when he found him, tendered him the money, I am not prepared to say that, in such case, the rules of law ought to be pressed so far as to render the party liable to an action the next day after the bill becomes due, and not to allow him to plead that tender, by which means the proceedings of a court of law are made nothing else but machinery to

A note may be negotiated on the second day of grace, and the holder will then be protected; (y) but if negotiated on the third, there is a conflict of authority on the question whether the note

increase costs." In Ex parte Moline, 19 Ves. 216, 1 Rose, 303, it was held that a demand on the acceptor, at 11 A. M., and notice of non-payment to the drawer the same morning, warranted the proof of the debt against the drawer, who had become bankrupt. In Staples v. Franklin Bank, 1 Met. 43, Shaw, C. J. said: "In a late work, Byles on Bills, p. 131, it is stated that the acceptor of a bill, whether inland or foreign, or the maker of a note, should pay it on a demand made at any time within business hours on the day it falls due, and if it be not paid on such demand, the holder may instantly treat it as dishonored. But the acceptor has the whole of that day within which to make payment; and though he should in the course of that day refuse payment, which entitles the holder to give notice of dishonor, yet if he subsequently on the same day makes payment, the payment is good, and the notice of dishonor becomes of no avail. This writer cites Hartley v. Case, 1 Car. & P. 555, 676, 4 B. & C. 339. The point was made in that case, that notice could not be given on the day the note becomes due; but the case went off on another ground, and no opinion was given on this question. The passage cited appears contradictory to itself, inasmuch as it declares that the note is due and payable on demand on the last day of grace, and is dishonored if not then paid; and yet that the maker and acceptor have the whole day to pay it in. It would seem that there could be no dishonor, unless the maker had failed to comply with his contract; and if he has failed to comply with his contract, then, by a general rule of law, the holder has his remedy by action. . . . . . It is probable, that, though the holder may have a strict right to proceed in all respects as upon a dishonored bill on the last day, after demand, refusal, and notice, yet it is so far the general practice to postpone notice and other proceedings till the day following, that it is regarded amongst merchants as a right. That it seems so to have been understood by men of business, appears by a remark of Mr. Justice Buller, in Colkett v. Freeman, 2 T. R. 59, 61; and also by an obiter dictum of Bolland, B., in Webb v. Fairmaner, 3 M. & W. 473, 474 (supra, p. 405, note f). But the case of negotiable bills and notes was not then under consideration. Possibly it may be considered that the holder has a right to treat the bill as dishonored, after de mand and refusal, and even to commence an action, subject to be defeated and barred in case the maker should pay the amount due at any time on the last day of grace; though it is difficult to perceive how the holder can have a perfect right to treat the note as dishonored, by breach of the contract, and, at the same time, that the acceptor can have a perfect right, by payment of the bill, to perform his contract, and save himself from the consequences of such breach. In Hartley v. Case, 1 Car. & P. 556, . Abbott, C. J., on a motion to show cause, says: 'I think notice of dishonor, given on the day on which the bill is payable, will be good or bad, as the acceptor may or may not afterwards pay the bill. If he does not afterwards pay it, the notice is good; and if he does, it of course comes to nothing.' This certainly implies that, after non-payment on demand, on any part of the last day, there is a breach of the contract of the maker, and no further demand is necessary to complete the holder's right against the maker, acceptor, and indorsers. But whether, after such breach, and before the close of the day, an action might be commenced against either, does not appear by this case, nor, as we believe, by any case decided in England" In Chitty on Bills, 274, 10th

(u) Savings Bank v. Bates, 8 Conn. 505.

is dishonored.(z) We should consider the correct rule to be, that where the note is payable generally, it is not dishonored until the close of the day, and when payable at a bank, not until the close of bank hours.

It is the usage of all our banks to consider notes and bills discounted by them, or left with them for collection, whether payable at the bank or generally, as dishonored at the close of business hours, which are then the bank hours, on the day of maturity. And the paper is then handed to a notary for demand and protest. And undoubtedly this usage would determine the rights and obligations of the parties in any case to which it applied.

The hours within which presentment for payment and for acceptance should be made are the same in both cases. In the case of paper not payable at a bank, demand may be made on the payor personally, or on his authorized agent, at any reasonable hour of the day, even so late as nine o'clock in the evening. (a)

Lond. ed., the question is discussed, whether the acceptor has the whole day or not for payment. The author says that the holder may treat the bill as dishonored on the third day; and that this "appears now to be the established rule." In Castrique v. Bernabo, 6 Q. B. 498, which was an action against an indorser, it appeared that the notice was put into the mail the same day the action was commenced. It was held that the plaintiff was bound to show that, in the ordinary course of the mail, the letter would be delivered before the time of the commencement of the action.

(z) The note is held dishonored in Pine v. Smith, 11 Gray, and not dishonored in Crosby v. Grant, 36 N. H. 275. The two cases rest probably on the difference between the time when the right of action commences in the two States.

(a) In Burbridge v. Manners, 3 Camp. 193, a demand was made in the forenoon, and held good. Ex parte Moline, 19 Ves 216, a demand on an acceptor at 11 A. M., and notice sent immediately, were held to warrant a proof of the debt against the drawer, who had become bankrupt. Lord Eldon said: "I do not recollect any decision, that, if an acceptor declares at 11 o'clock in the morning that he will not pay, notice of that to the drawer is not good. If the law does not impose on the holder the duty of inquiring again before 5 o'clock, it would be extraordinary that this information to the drawer of an answer precluding any hope of obtaining anything by calling again should not have effect." In Leftley v. Mills, 4 T. R. 170, Buller, J. said: Bills of exchange "are payable at any time on the last day of grace, provided that demand be made within reasonable hours. A demand at a very early hour of the day, at two or three o'clock in the morning, would be at an unreasonable hour; but, on the other hand, to say that the demand should be postponed till midnight, would be to establish a rule attended with mischievous consequences." So Greeley Thurston, 4 Greenl. 479. In Dana v. Sawyer, 22 Maine, 244, where the maker was called up from his bed a few minutes before midnight, the demand was held insufficient. Shepley, J. said: "Perhaps it might be proper to admit an exception in this and the like cases, if it should appear from the answer made to the demand that there was a waiver of any objection as to the time, or that VOL. I.-2 B