if he has reason to think they or any of them know where the indorser lives or does business. Wolf v. Burgess, 59 Mo. 583; Gilchrist v. Donnell, 53 Mo. 591.

The holder should not allow the notary to act upon his own information as to the residence of an indorser, if he (the holder) have direct information. Edwards v. Thomas, 66 Mo. 468. While, in accordance with the principal case, Walker v. Stetson, notice at one's place of business or residence, if not given personally, is usually necessary, still, if the party to be notified is away from home, and the notice is sent to him and reaches him as soon as it would have done if sent to his residence or place of business, it is good notice. Dicken v. Hall, 87 Penn. St. 379.

So, too, the party's strict rights as to the place and manner of receiving may be waived by a previous course of dealing, not terminated to the knowledge of the holder. Lime Rock Bank v. Hewett, 52 Maine, 51. See Grinman v. Walker, 9 Iowa, 426.

If a note, bill, or check should be indorsed for collection by an agent, as by a collecting bank, the notice, it seems, should be sent to such agent. Compare ante, p. 284, last paragraph.

The place of the date of a bill or of an indorsement is prima facie evidence of the residence or place of business of the drawer in the one case, or of the indorser in the other, and may, it should seem, be safely acted upon by the holder, unless he knows, or has reason to know, of a removal. Burmester v. Baron, 17 Q. B. 828. This case goes to the full extent of this proposition, if not beyond. Notice was directed to the drawer of a bill, according to the date, though the holder might have learned on inquiry, that he resided elsewhere; but the notice was held good, though the letter containing

it was not received. But some of the American authorities fall considerably short of the rule, as above stated. Thus in Lowery v. Scott, 24 Wend. 358, it was held that notice of dishonor, sent by mail, in a letter directed to the drawer of a bill at the place where the bill upon its face purported to have been drawn, was not sufficient to charge the drawer in the absence of evidence that proper inquiry had been made as to his place of residence. Some inquiry, it was decided, is necessary. This case was decided upon the authority of the early cases of Fisher v. Evans, 3 Binney, 541, and Barnwell v. Mitchell, 3 Conn. 101. See also, to the same effect, Spencer v. Bank of Salina, 3 Hill, 520; Carroll v. Upton, 3 Comst. 272; Taylor v. Snyder, ante, pp. 227, 237; Sprague v. Tyson, 44 Ala. 338; Tyson v. Oliver, 43 Ala. 458. And see Hill v. Varrell, 3 Greenl. 233.

The English rule, however, which appears to be the better one, was followed in Pierce v. Struthers, 27 Penn. St. 249. But it may well be affirmed, that when the holder knows, or has reason to know, that the drawer's residence and place of business are elsewhere than the date of the bill might indicate, he cannot safely act upon the place of date as a suitable address for the notice. Ib. See further, Mason v. Pritchard, 9 Heisk. 793. And, of course, the place of the date is no evidence of the residence or place of business of an indorser. Lawrence v. Miller, 16 N. Y. 235, 240; Spencer v. Bank of Salina, 3 Hill, 520; Branch Bank of Alabama v. Pierce, 3 Ala. 321.

In any event, however, if the notice reach the party upon the same day on which he would have received it if properly addressed, it is good. Manchester Bank v. Fellows, 28 N. H. 302, 311; Hyslop v. Jones, & McLean, 96; Hill v. Norvell, 3 McLean, 383; Foster v. Sineath, 2 Rich. 338.

Notice at the party's residence for the time is sufficient; though that be not his domicile, if it be his actual residence and not a mere temporary stop ping place, as was the case in Walker v. Stetson, ante, p. 314. Thus notice sent to a member of the Legislature or of Congress at the place of meeting is good. Graham v. Sangston, 1 Md. 59; Chouteau v. Webster, 6 Met. 1; Lunstall v. Walker, 2 Smedes & M. 638. See Young v. Durgin, 15 Gray, 264; Wilson v. Senier, 14 Wis. 380.

The

§ 2. Diligence. The result with regard both to the time and place of notice of dishonor is that the holder must exercise due diligence. meaning of this, as to time, has been fixed, prima facie, to one day after dishonor, or after the reception of notice. Diligence as to the place of notice is more complex; and no absolute rule further than the general requirement of reasonable diligence can be laid down. Whether this requirement has been met in a particular case will depend upon the facts of the case; the question being one of law, when the facts are ascertained, as was decided in the principal case, Bank of Utica v. Bender. Walker v. Stetson, ante, p. 314; Bank of Columbia v. Lawrence, ante, p. 323; Bank of Alexandria v. Swann, ante, p. 293; Carroll v. Upton, 3 Comst. 272; Wheeler v. Field, 6 Met. 290; Beldon v. Lamb, 17 Conn. 442; Lorain Bank v. Townsend, 2 Ohio St. 343; Peters v. Hobbs, 25 Ark. 67; Farmers' Bank v. Gunnell, 26 Gratt. 131; Tardy v. Boyd, 26 Gratt. 631.

After due diligence has once been exercised, and notice sent accordingly, it is declared unnecessary for the holder to give any further notice, even if he should afterwards discover that he had sent notice to the wrong place. Lambert v. Ghiselin, 9 How. 552. But see Beals v. Parrish, 20 N. Y. 407,

to the contrary, though without noticing Lambert v. Ghiselin.

Besides the matter of properly addressing notice of dishonor through the mail, a question of diligence sometimes arises as to the personal delivery of notice. Upon this question, it has been declared in the case of Williams v. Bank of United States, 2 Peters, 96, that going to the residence of the indorser or drawer, to serve the notice of dishonor, and, upon finding the house closed and unoccupied, making inquiry at the next door, and acting accordingly, is prima facie sufficient. The court based their determination upon the broad and intelligible principle, that if a precedent act is to be performed at a certain time or place, and a strict performance of it is prevented by the absence of the party who has a right to claim it, the law will not permit him to set up the nonperformance of the condition, as a bar to the responsibility which his part of the contract had imposed upon him.

Cases like Williams v. Bank of United States, however, are not cases of express waiver, in which no question of diligence arises, but at most only of implied waiver; the waiver (if that be a proper term) failing, if there appear to have been wanting the exercise of reasonable diligence on the part of the person giving the notice. Hence, if it had appeared that reasonable diligence, for any cause, had not been exercised by making inquiry at the next door to the indorser's residence; if, for example, the party inquiring had been told, that by inquiring at another suitable place he could learn where the party wanted was ; then he would not have done his duty by stopping his search.

That due diligence has not been performed by merely going to the residence or place of business of the payor, and, on finding it closed, leav

ing without further action, unless the plaintiff also allege and prove that the party had absconded (Lehman v. Jones, post), see Collins y. Butler, 2 Strange, 1087; Bateman v. Joseph, 12 East, 433; Beveridge v. Burgis, 3 Campb. 262; Browning v. Kinnear, 1 Gow, 81; Hine v. Allely, 4 Barn. & Ad. 624; Granite Bank v. Ayres, 16 Pick. 392; Lanusse v. Massicot, 3 Mart. (La.) 261, 265; Franklin v. Verbois, 6 La. 727; Baumgardner v. Reeves, 35 Penn. St. 250. In Shedd v. Brett, 1 Pick. 413, Parsons, C. J., seemed to think inquiry unnecessary, though there was evidence that diligent search had been made.

§ 3. Lex Loci. It remains to consider that special phase of the law of place suggested by the principal case, Aymar v. Sheldon, relating to steps taken for the fixing of the liability of the drawer or indorser of a bill, check, or note.

The law as laid down in Aymar v. Sheldon, though formerly somewhat uncertain, may now be considered as settled, in accordance with the rule there declared; to wit, that the defendant's liability is governed by the law of the State or country of the contract of indorsement. The rule declared in Aymar v. Sheldon has been adopted or approved in the following cases: National Bank v. Green, 33 Iowa, 140; Huse v. Hamblin, 29 Iowa, 501; Greathead v. Walton, 40 Conn. 226; Conahan v. Smith, 2 Disney, 9; Hatcher v. McMorine, 4 Dev. 122; Wallace v. Agry, 4 Mason, 336, 344, per Story, J.; Astor v. Benn, 1 Stuart (Canada), 69; Slacum v. Pomery, 6 Cranch, 221; Hazelhurst v. Kean, 4 Yeates, 19; Crawford v. Branch Bank at Mobile, 6 Ala. 12; Williams v. Wade, 1 Met. 82. See also Allen v. Merchants' Bank of New York, 22 Wend. 215, overruling s. c. 15 Wend. 482; Lizardi v. Cohen, 3 Gill, 430;

Frazier v. Warfield, 9 ̊ Sm. & M. 220; Kearney v. King, 2 Barn. & Ald. 301; Don v. Lippman, 5 Clark & F. 1; Andrews v. Herriot, 4 Cow. 508, and the learned note of the reporter. Contra, Ellis v. Commercial Bank, 7 How. (Miss.) 294.

The case of Rothschild v. Currie, 1 Q. B. 43, has sometimes been thought to be opposed to this rule. Story, Notes, § 339, note. And the reasoning in that case is certainly inconsistent with the rule in Aymar v. Sheldon ; and in this respect, the case has been criticised in England. Horne v. Rouquette, Law Rep. 3 Q. B. Div. 514, 521, 523, Court of App. But upon its facts, Rothschild v. Currie is held good law. Horne v. Rouquette; Hirschfeld v. Smith, Law Rep. 1 C. P. 340.

In Rothschild v. Currie (and the same is true of Hirschfield v. Smith) the bill was drawn in England, and there indorsed by the defendant to a person in France, where the drawee and acceptor resided, and where the bill was further indorsed. The French holder presented the bill for payment, and upon dishonor took the steps required by the French law for fixing the defendant's liability. It was conceded that if the holder had resided in England, the steps taken would not, prima facie, have been sufficient to fix the liability of the defendant; and the question, therefore, was, whether he could be held. It was decided that he was liable.

The true ground of this decision has been given in later cases. The contract of the defendant is agreed to have been an English contract; and it' is also uniformly agreed, that the law of England should accordingly govern the question of liability. But the question is, What is the law of England in such a case? That law is, that due diligence should be exercised by

the holder in the steps taken to fix the liability of a drawer or of an indorser; and though in ordinary cases the term, "due diligence," has a fixed and strict meaning, this meaning is not applied when it cannot reasonably be insisted upon. Presentment on the last day of grace, and notice of dishonor upon the same or the following day, are only a prima facie requirement, and not to be insisted upon if, in point of fact, reasonable diligence has been exercised.

Now the law of England is considered to have been satisfied upon this point, if the foreign holder has in the foreign country, according to the law which there prevails, taken the steps necessary to fix the defendant's liability. He has acted in such a case

with due diligence, and the terms of the English contract have been fulfilled according to the English law. Hirschfeld v. Smith, Law Rep. 1 Com. P. 340; Horne v. Rouquette, Law Rep. 3 Q. B. Div. 514, Court of App.

It is well settled that the time when a bill or note, becomes due depends upon the lex loci solutionis. Rouquette v. Overmann, Law Rep. 10 Q. B. 525. And until presentment for payment has been effectually made, notice of non-payment cannot be effectually given. Ib. This doctrine was applied, in the case cited, to certain governmental extensions of the time of paying bills and notes payable in France during the late war with Germany.