Deminds v. Kirkman

9 Miss. 644

• Court: Mississippi Supreme Court
• Decided: January 15, 1844
• Status: Published

Opinion

Mr. Justice Clayton

delivered the opinion of the court.

This was an action against the makers and indorsers of a promissory note. The only error assigned grows out of the following charge of the court, “ that the notice was placed in the ' post office in time, if placed there at any reasonable hour of the day next after the protest, if they believed the mail of that day went out before sunrise.”

The point here presented was much considered by the court in the late case of Downs v. The Planters Bank,

* and the authorities examined with great care. The rule then laid down as the result of ou,r reflection, was, “ that the holder need not put the notice in the office on the same day the note is protested, but he must on the next day, in time for a mail of that day, unless it leaves at an unreasonably early hour.”

When the mail leaves a post office before sunrise, there is no doubt it is usually made up, and prepared for delivery to the carrier, the night before, and all letters contained in it, must have been deposited before it was closed the night before. To hold that the notice in a case like this, must be sent by the mail of the morning next after the protest, would be virtually to require that the letter should be mailed on the day of protest. This would be laying down the rule with too much strictness.

The charge and finding in this case, are in accordance with the case above referred to, and we therefore direct the judgment to be affirmed.

The case of Downs v. The Planters Bank, cited in the text, is reported in this volume, supra 261.