[460] The opinion of the Court, Shepley J. dissenting, was drawn np by
Whitman C. J.
.This is an action against an indorser of a promissory note, who contends, that he has not been seasonably notified of its having been dishonored by the maker. The note became due in the city of New York, on the twenty-ninth day of November. The mail closed there, daily, at six o’clock in the morning for Bangor, the residence of the defendant. According to the evidence, it seems, that the notice of the dishonor of the note was not put into the postoffice at New York until the latter part of the next day, being the BOth of November; and therefore not in season to go before the morning of the first of December. The question is, was this reasonable notice. It is not a little singular, that a question of this kind should, to this day, have remained in doubt.
It was said in the books, formerly, that where the parties lived in different towns, between which a regular post was established, the notice of dishonor should be despatched by the next post. It was next held that it should be sent by the next practicable mail; and, subsequently, as early as by the mail of the next day; and this has been supposed by some, to mean by such mail, however early in the morning it might start. In Goodman v. Norton, 17 Maine R. 381, it was held that the notice of dishonor must be put into the postoffice on the day of the demand upon the maker; or in season to be sent by the first mail of the succeeding day. The circumstances in that case were almost, if not quite, identical with those in the case before us. The mail in that case left New York, daily, at six o’clock in the morning. On the 27th of November a note fell due, and was dishonored. Notice of the nonpayment was not put into the postoffice till the next day, and after the morning’s mail left. Although there was testimony in that case, that notice, so given, was according to the usage of the banks in that city; yet the indorser was held to be discharged. And in Beckwith v. Smith, 22 Maine R. 125, Mr. Justice Shepley, in delivering the opinion of the Court, recognized the same principle as the rule of law. These [461] decisions we are now called upon to revise; and, although supported by numerous dicta to be found in elementary treatises and reports, yet, if erroneous, we cannot hesitate to do so$ ■especially in reference to a point of such extensive application.
It must be admitted to be of infinite importance, in this commercial age, that decisions, in reference to what constitutes due notice of the dishonor of bills of exchange, and promissory notes, should be the same throughout communities, which are in the habit of circulating and interchanging such paper j so intimately connected as it is with extended negotiations in trade. All laws affecting commercial pursuits should, as near as may be practicable, partake of the character of international law. Between the United States and Great Britain, a uniformity of usage, in whatever concerns negotiable paper, is highly important. In both countries the principles of the law •merchant are derived from one and the same source. In the United States, in an especial manner, it is all important, that there should be the same rule prescribing what shall be legal notice in the case of dishonored paper. If the decision of this Court has failed of conforming to what, in the other States, would meet with sanction in their judicial tribunals, it will be highly proper that we should take the earliest opportunity to consider further of the subject. It is evident that the tendency has been, of late, so to extend the lime for giving notice, that some approximation, at least, may be made to the establishment of a rule in such cases, which shall be readily understood, and easily applied ; and as nearly applicable to all cases as possible.
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[460] The opinion of the Court, Shepley J. dissenting, was drawn np by
Whitman C. J.
.This is an action against an indorser of a promissory note, who contends, that he has not been seasonably notified of its having been dishonored by the maker. The note became due in the city of New York, on the twenty-ninth day of November. The mail closed there, daily, at six o’clock in the morning for Bangor, the residence of the defendant. According to the evidence, it seems, that the notice of the dishonor of the note was not put into the postoffice at New York until the latter part of the next day, being the BOth of November; and therefore not in season to go before the morning of the first of December. The question is, was this reasonable notice. It is not a little singular, that a question of this kind should, to this day, have remained in doubt.
It was said in the books, formerly, that where the parties lived in different towns, between which a regular post was established, the notice of dishonor should be despatched by the next post. It was next held that it should be sent by the next practicable mail; and, subsequently, as early as by the mail of the next day; and this has been supposed by some, to mean by such mail, however early in the morning it might start. In Goodman v. Norton, 17 Maine R. 381, it was held that the notice of dishonor must be put into the postoffice on the day of the demand upon the maker; or in season to be sent by the first mail of the succeeding day. The circumstances in that case were almost, if not quite, identical with those in the case before us. The mail in that case left New York, daily, at six o’clock in the morning. On the 27th of November a note fell due, and was dishonored. Notice of the nonpayment was not put into the postoffice till the next day, and after the morning’s mail left. Although there was testimony in that case, that notice, so given, was according to the usage of the banks in that city; yet the indorser was held to be discharged. And in Beckwith v. Smith, 22 Maine R. 125, Mr. Justice Shepley, in delivering the opinion of the Court, recognized the same principle as the rule of law. These [461] decisions we are now called upon to revise; and, although supported by numerous dicta to be found in elementary treatises and reports, yet, if erroneous, we cannot hesitate to do so$ ■especially in reference to a point of such extensive application.
It must be admitted to be of infinite importance, in this commercial age, that decisions, in reference to what constitutes due notice of the dishonor of bills of exchange, and promissory notes, should be the same throughout communities, which are in the habit of circulating and interchanging such paper j so intimately connected as it is with extended negotiations in trade. All laws affecting commercial pursuits should, as near as may be practicable, partake of the character of international law. Between the United States and Great Britain, a uniformity of usage, in whatever concerns negotiable paper, is highly important. In both countries the principles of the law •merchant are derived from one and the same source. In the United States, in an especial manner, it is all important, that there should be the same rule prescribing what shall be legal notice in the case of dishonored paper. If the decision of this Court has failed of conforming to what, in the other States, would meet with sanction in their judicial tribunals, it will be highly proper that we should take the earliest opportunity to consider further of the subject. It is evident that the tendency has been, of late, so to extend the lime for giving notice, that some approximation, at least, may be made to the establishment of a rule in such cases, which shall be readily understood, and easily applied ; and as nearly applicable to all cases as possible.
In Whitwell & al. v. Johnson, 17 Mass. R. 449, Mr. C. J. Parker says, “ After some doubts, and looking into authorities, we are satisfied, that it was not necessary for the plaintiff to show, that notice to the indorser was put into the mail on the same day the note became due.” And,, again, he says, in the same case, “ the next clay is early enough. And if there should be two mails a day, whether the notice goes by the first, or the second of those mails, we think is immaterial, provided it was put into the postoffice early enough to go by a. [462] mail of that day.” Hence, if the notice need not be put into the postoffice till the next day, it could not, it would seem, be required to put it in at an unseasonable hour of that day. Six o’clock in the morning of the thirtieth of November would be by break of day, and earlier than it could be expected, of men of business, in our commercial seaports, to be stirring, and therefore at an unseasonable hour. In the Bank of Alexandria v. Swan, 9 Peters, 83, the notice of dishonor was put into the postoffice at Alexandria on the day succeeding that of the dishonor. The mail left there some time in the night, and generally between twelve and two o’clock for Washington, to which place the notice was despatched, in time to be delivered at eight o’clock in the morning. In strictness the mail, which left in the night after the dishonor, was the mail of the next day; but the Court held the notice was forwarded in due season. In Geill v. Jeremy & al. Moody & Malkin, 61, Lord Tenterden said, “ In these cases it is important to have a fixed rule, and not to resort to nice questions of the sufficiency, in each particular case, of a certain number of hours or minutes. The general rule is, that the party need not write on the very day that he receives the notice. If there be no post on the following day, it makes no difference. The next post after the day, on which he receives the notice, is soon enough.” In Firth v. Thrush, 8 Barn. &. Cres. 387, the attorney of the holder could not, at first, find out the residence of the party to be notified. At length, ascertaining it, he took one day to consult his client; and on the third day despatched notice, and it was held sufficient, upon the ground that he might be regarded in the light of a bank, holding a bill for collection. In which case it had been held, that the bank need not notify the owner till the day after the dishonor; and that the owner was entitled to still another day to despatch his notification to his indorsers. In Wright v. Shawcross, 2 B. & Ald. 501, it was held that a person, receiving notice on Sunday, was not bound to open it till Monday, and that notice by the post of the following Tuesday evening, instead of that of Monday evening, was [463] sufficient. In Hawkes v. Sulter, 4 Bing. 715, Mr. C. J. Best, in reference to notice of the dishonor of a bill, which took place on Saturday, at a place at which the mail left at half-past nine o’clock in the morning of each day, expresses himself to be decidedly of opinion, that notice by the mail of the following Tuesday morning would be seasonable. This must have been upon the ground that Sunday, being no day of business, the next business day was Monday ; and that it was not reasonable to require notice to be despatched by the mail, which left at half-past nine o’clock on Monday morning. A fortiori if it had closed at six o’clock in the morning, as in the case at bar, it would have been unreasonable to have required notice to have been despatched by it. In Freeman’s. Bank v. Perkins, 18 Maine R. 292, Mr. C. J. Weston says, “ on the day of the maturity of the bill he, (the holder for collection,) caused it to be protested for non-payment, and notices to be forwarded to the drawer, indorser and acceptor, which were mailed the next day; and this was using all the diligence, which the law requires.” If it was sufficient that the notices should be mailed the next day, it would seem to follow, that it could not be required to be done at an unseasonable hour of that day, and by break of day in the morning or before. But the case, most directly and explicitly in point to show, that notice need not be put into the postoffice till the next day after dishonor, nor then until after the commencement of business hours, is to be found in the first of Hill’s New York Reports, p. 263, Howard v. Ives. Mr. Justice Cowen, in delivering the opinion of the Court in that case, says, “ the holder is never required to mail notice to his indorser the very day on which default is made in payment.” “Here the protest being on Saturday the notice was properly mailed on the next Monday.” “ Mailing in season for either of the two mails on Monday was sufficient.” “It is not necessary to say, that, in all cases where there are several mails on the same day, the party may elect by which he will send. Clearly he comes to the mark, when he selects that post which leaves [464] next after the hours of business commence for the day. This is the next practicable or convenient post.”
In Kent’s Commentaries, (vol. 3, p. 106,) the author lays down the law to be, “ That if the third day of grace be on Thursday, and the drawer and indorser reside out of town, the notice may indeed be sent on Thursday, but must be put into the postoffice on Friday, so as to be forwarded as soon as possible thereafter.” And again, (same page) “ It seems to be now settled, that each party, into whose hands a dishonored bill may pass, shall be allowed one entire day for the purpose of giving notice.” And it was so held in Bray & al. v. Hadwin, 5 M. & S. 68. In a note in Kent’s Commentaries, (vol. 3, p. 107, 4th Ed.) the author says, “ The rule in Lenox v. Roberts, 2 Wheat, 373, was laid down too strictly, when it stated that the demand of payment should be made upon the last day of grace, and notice of the default be put into the postoffice early enough to be sent by the mail of the succeeding day.” And, although this decision was spoken of with approbation in the Bank of Alexandria v. Swan, 9 Peters, 33; yet “ that the decision only is, that notice need not be put into the postoffice on the day of the default.” And again, (same page) “ That this principle will sustain the rule as now generally, and best understood in England, and the commercial part of the United States, that notice put into the postoffice on the next day, at any time of the day, so as to be ready for the first mail that goes thereafter, is due notice.”
In Story on Bills, <§> 288, it is laid down, “ That if the post or mail leaves the next day after the dishonor, the notice should be sent by that post or mail, if the time of its closing or departure is not at too. early an hour to disable the holders from a reasonable performance of the duty.” And again, (§ 290) “ He, the holder, is always allowed by law a whole day for this purpose.” Under this last section, in a note, he makes a long extract from Chitty on Bills, in which this passage occurs. “ Another reason is, that the holder ought not to be required, omissis omnibus aliis negotiis, to occupy himself immediately in forwarding notice to the prior parties, when by [465] delaying that, step till the next morning, he would, after the pressure of ether business had subsided, have in the evening, or early the next morning, before the general business commences, time to look into his accounts with the other parties.” This author is again quoted in the note as saying, in another part of his work, that notice must be sent oil’ by the post of the next day, whether it goes early or late. Upon this passage Judge Story remarks, “ It appears to me the rule is not so strict as it is laid down in this last passage of Mr. Chitty, and that it would be more correct to say that the holder is entitled to one whole day to prepare his notice, and that therefore it will be sufficient if he sends it by tbe next post, that goes after twenty-four hours from the time of the dishonor.” This shows what this learned author understands by one whole day, so often repeated, in the cases upon this point. And it may be difficult to affix any other understanding or meaning to that phraseology. Judge Story, however, admits that in this he is supported by the authority of no adjudged case directly ; but thinks it results from the authorities on the subject. That Mr. Chitty’s last quoted sentence is liable to exception, is manifest from the preceding quotation from his work; for the latter cannot bo reconciled with the former, or with the adjudged cases.
The authorities, cited on the part of the counsel for the defendant, are numerous, tending to show that the notice to drawers and indorsers, not resident in the places where the holder of their dishonored paper may live, should bo given as early as by the mail of the next day, and some of them, such as the dictum in the last extracts from Chitty, and the cases of Goodman v. Norton, and Beckwith v. Smith, seem to go the length of holding that notice; should be given by the mail of the next day, however early it might start. But, the question pending in the reported cases, generally, was whether the notice should be sent the same day, or by a mail of the succeeding day, and did not present the question whether it should be sent by the mail of the next day, however early it might start, or by a later mail, or a reasonably practicable mail.
[466] In a late case, Chouteau v. Webster, 6 Metc. 1, it appears a note was protested in New York, at 3 o’clock, on the afternoon of one day; and that the notice of dishonor was despatched to the indorser, by being put into the postoffice in New York for him on the next day. Mr. C. J. Shaw, in delivering the opinion of the Court in that case, says, it is admitted, “ that notice thereof (of the dishonor) in due form was seasonably prepared by the proper officer, and put into the postoffice.” Nothing is said in the case as to the hour of the day when the mail was made up to convey the notice to the defendant, nor of the precise time of the day when the notice was put into the postoffice. If either had been deemed material, surely it would have been alluded to, either in the statement of the case, or in the arguments of counsel. It could not well have escaped the notice of the counsel for the defendant, aided as he must be believed to have been, by the superior legal knowledge of the latter.
A majority of the Court is, therefore, brought to the conclusion, that the weight of the more modern authorities, both in England and America, is decidedly in favor of a rule of a more convenient and reasonable operation. It may not go to the extent of allowing at least twenty-four hours for the purpose of despatching notice, though it might tend to certainty and precision if such were the case. It seems to be without question, that it extends to the allowance of a convenient time after business hours of the next day after the dishonor, shall have commenced, to prepare and despatch notice. To the decision of this cause it is not necessary to consider whether the rule should extend further or not. The notice was mailed in season to go by the next mail, which left after the business hours of the day, succeeding that of the dishonor, had commenced.
The action, therefore, as agreed by the parties, must stand for trial upon other grounds.