mitting the notice beyond the time the law allows, which will, in accordance with the rules already laid down, be a good defence.(g)

We think that evidence should be adduced by the plaintiff to show the time occupied by the mail between the places, as it is difficult to see how the court can take judicial cognizance of it. Perhaps the proposition should be further qualified by requiring. the plaintiff to prove that he transmitted the notice to his prior indorser, or to the one whom he wished to hold, within the requisite time, thus clearing himself at least of all imputation of neglect or laches.(h)

This question may also be important with reference to the point whether notice was put into the post-office in season to go by the mail of the next day after dishonor, or the reception of the notice. It would seem to follow, from the cases which we have already cited, (i) that it will be sufficient to prove that the notice was in each case deposited before business hours of the next day, because the plaintiff would by this show that he had done all that was required of him.(j) But if the only evidence was, that it was deposited after business hours of that day commenced, then it would seem necessary at least to show that there was no mail between the commencement of business hours and the time of depositing the notice in the office.(k) We have

the third in New Hampshire. The note was protested in Philadelphia, October 4th. The agent of the third indorser received on October 8th or 9th a notice from his principal, dated October 6th, and notified the plaintiff the same day, who also notified the defendant on that day. A verdict for the plaintiff was set aside. Parker, C. J. said : "There is no evidence in this case of the course of the mails, nor does it appear whether there was a party at Philadelphia, nor at what time or in what manner notice was sent from that place, nor when it was received by Hutchinson in New York. The objection on this part of the case is well taken, and for this reason the case must be sent to a new trial." This case does not appear to conflict with the proposition in the text. It proceeded mainly upon the ground that there was no evidence as to the time occupied by the mails, a fact of which the court could not take judicial cogniThere was also a greater length of time than could be reasonably accounted for between the day of protest and October 9th.

zance.

(g) Supra, p. 000.

(h) But this does not seem to have been adverted to in the cases cited supra, p. 516, note ƒ, although in both cases it appeared that the plaintiffs transmitted their notices within their time.

(i) Supra, p. 511, note l.

(j) See Commercial Bank v. King, 3 Rob. La. 243, supra, p. 512, note o.

(k) Seventh Ward Bank v. Hanrick, 2 Story, 416; Burgess v. Vreeland, 4 N. J. 71 ; Downs v. Planters' Bank, 1 Smedes & M. 261; Beckwith v. Smith, 22 Main, 125

already seen,() that, in order to charge an indorser of a note payable on demand, presentment must be made within a reasonable time. But if, after such presentment, the note is dishonored, there is no good reason why the same rules as to the time within which notice is to be forwarded to the indorser should not apply, as in the case of other notes and bills. (m)

We have also seen (n) that a note or bill in which no time of payment is specified is to be considered as payable on demand. We should say in this case also that notice should be given within the same time as in other cases. (o)

It has already been remarked,(p) that a note indorsed when overdue is by the best authorities considered equivalent to a note or bill on demand, though some cases hold that the same strict rules are not to be applied. It has been said that the holder has a reasonable time after presentment within which to notify the indorser, and that this reasonable time may be so long as twe months, (q) and an opinion has been expressed that no notice at all is necessary. (r) To maintain these views would seem to be

For the facts of these cases, see supra, p. 512, note o. In Moore v. Burr, 14 Ark. 230, the notary's deposition stated that the notice was deposited in the post-office on the next business day after dishonor, "in time to go by the first mail thereafter." Held insufficient to charge the defendant, because there was no proof that it was deposited in time to go by the first convenient mail, if any, of that day.

(1) Supra, p. 263, et seq.

(m) In Field v. Nickerson, 13 Mass. 131, part of the instruction of the judge at Nisi Prius was, that "immediate notice" was requisite. Held correct. No objection to the charge on this point appears to have been raised by counsel or adverted to by the court. In Seaver 7. Lincoln, 21 Pick 267, Shaw, C. J. said: "Demand being made on the makers at Fall River, notice to the indorser, at the distance of twenty-four miles, on the succeeding day, was within due time." It is laid down in the following cases that the same rule applies as to giving notice. Lord v. Chadbourne, 8 Greenl. 198; Perry v. Green, 4 Harrison, 61; Lockwood v. Crawford, 18 Conn. 361. In Nash v. Harrington, 2 Aikens, 9, Hutchinson, J. said, that the notice ought to have been given the day of the demand, the parties living near each other, in the same village.

(n) Supra, p. 381.

(0) Brenzer v. Wightman, 7 Watts & S. 264.

(p) Supra, p. 381.

(q) Savage, C. J., Van Hoesen v. Van Alstyne, 3 Wend. 75. This opinion is commented upon, and its correctness denied, by Church, C. J., in Lockwood v. Crawford, 18 Conn 361.

See Bank of North

(r) O'Neall, J., Gray v. Bell, 3 Rich. 71, supra, p. 381, note j. America v. Barriere, 1 Yeates, 360. In the following cases it is said that the same strict rules as to notice do not apply. Duncan, J., M'Kinney v. Crawford, 8 S. & R. 351; Hall v. Smith, 1 Bay, 330; Rugely v. Davidson, 4 Const. R. 33; Brock v. Thompson, 1 Bailey, 322, where three demands appear to have been made, and

introducing unnecessary distinctions, and in our opinion the notice should be transmitted as soon in the case of such notes and bills as of any others. (s)

If the analogy between notes and bills on demand, and those indorsed when overdue, and notes and bills payable at sight, is to be carried out, the same notice of dishonor would certainly be requisite, for no distinction that we are aware of has ever been attempted to be drawn between the time necessary in forwarding notice to an indorser of a bill at sight, and one in which there is a fixed time for payment.

notice given only of the last. A verdict for the plaintiff was sustained. In Chadwick v. Jeffers, 1 Rich. 397, it is said that the duty of the holder as to notice, in such cases, is limited to the use of such diligence that the indorser suffers no injury through his neglect. Knowledge by the indorser that the maker was sued, at or imme. diately after the commencement of the action, was held sufficient notice, in Benton v. Gibson, 1 Hill S. Car. 56; Chadwick v. Jeffers, 1 Rich. 397; Gray v. Bell, 3 id 71, 2 id. 67. In the last case the writs were served simultaneously, and it was contended that there could be no such knowledge. But the court held the evidence sufficient to sustain a verdict for the plaintiff

(s) It is said, in the following cases, that the same rules applied. Berry v. Robinson, 9 Johns. 121; Bishop v. Dexter, 2 Conn 419; Ecfert v. Des Coudres, 3 Const. R. 69; Course v. Shackleford, 2 Nott & McC. 283. In these cases there had been neither demand nor notice. In Poole v. Tolleson, 1 McCord, 199, there had been a demand, but no notice, and the indorser was discharged. Richardson, J. expressly said, that immediate notice should have been given, as in any other case. See his remarks, cited supra, p. 382, note m. In Rice v. Wesson, 11 Met. 400, the holder made a demand some time before he was obliged to, in the opinion of the court, and two weeks afterwards made another. He gave notice of the last demand only. The court dis charged the indorser for the neglect to notify him of the first demand.

CHAPTER XIII.X

OF EXCUSES FOR WANT OF NOTICE.

IT may be doubted whether any branch of commercial law, somewhat narrow in itself, exhibits so large a number of cases, and so boundless a variety in their facts and the conclusions from them, as those which relate to the subject of this chapter. It is not easy to imagine any circumstance attending non-notice which in some form or other is not urged as an excuse for it. And the decisions of the courts permit authorities to be cited on both sides of almost every question.

In our endeavor to present the law on this subject with whatever distinctness may be possible, we shall be aided by some previous general considerations as to the kinds and classes of these excuses. Some of them are so peculiar, that it is difficult to arrange them in company with any others, or to bring them under any general head. We may, however, on the whole, place all these excuses (all which have passed under adjudication, whether they have been deemed sufficient or otherwise) in four broad divisions.

The first of these is the excuse arising from the entire absence of necessity or utility, because the party who should receive the notice must know the facts as well as the party who should give it. If, for example, A draws on himself, payable to himself, and then accepts, and then indorses, a holder need not first demand of him as drawee, and then notify him of non-payment as drawer, and then notify him again as indorser. And we shall see in what way and to what extent this principle is applied, not where a person can be proved to have had knowledge in fact, for it is certain that this is no excuse for the want of regular notice, but where the person must of necessity have the knowledge by presumption of law, as where a firm draws upon itself, or where some member or members of a firm draw on the firm.

The next excuse is actual impossibility. The ground of this is, that the law lays upon no man an impossible duty. But this impossibility may arise from some circumstance, such as the death of the party, which excuses delay only, and not entire want of notice; or from some obstruction which may be temporary only, as war, sickness, or tempest, which excuses delay or entire want of notice, according to the circumstances of the case ; or the utter inability to find the party to be notified, or his house or place of business, which is a complete excuse, unless it is removed by the efforts which the law requires, and then it will be seen to excuse delay only. Perhaps the questions presented by insolvency, and by the recurrence of days in which the law forbids labor or permits idleness, may best be considered under this head.

These two classes of excuses are far less frequent than the third, which is grounded on the fact that the party to be notified had no right whatever to draw or to indorse, and could not, by acting in his own wrong, acquire any right against others.

The fourth and last class of excuses consists of those which

allege a waiver. The ground on which all excuses of this class rest is, that the right to require notice may of course be given up, and that it has been, in the case in question, voluntarily abandoned and renounced; and that this has been done expressly, or by circumstances which mean and imply this waiver.

All of these classes of excuses we shall now proceed to con sider, and shall endeavor to illustrate the rules of law respecting them by a copious citation of authorities, and shall close this chapter with some general remarks on the subject of it.