many days after date, or after sight, the day of the date of the instrument is, by the modern practice, excluded from the computation. (c)

It is equally unseasonable to demand payment before the expiration of the third day of grace, as after the day. (d) The demand must be made on the third day of grace,2 or on the second, if the third day be a day of public rest; and in default of such demand, the drawer of the bill and the indorser of the note are discharged. (e) If, however, a note be made for negotiation, at a bank whose custom is to demand payment, and to give notice on the fourth day, that custom forms a part of the law of the contract, and the parties are presumed to agree to be governed, *104 in that case, by the usage. (f) The same rule applies

*

(c) Bayley on Bills, 155; Chitty on Bills, 406, 412; Story on Bills, §§ 329, 335. A note payable by instalments is a good negotiable note, and the maker is entitled to the days of grace upon the falling due of each instalment. Oridge v. Sherborne, 11 Mees. & W. 374.

(d) No usage or agreement, tacit or express, of the parties to a note, will accelerate the time of payment, and bind the maker to pay it at an earlier day than that fixed by law. Mechanics' Bank v. Merchants' Bank, 6 Metcalf, 13.1

(e) Coleman v. Sayer, Str. 829; Wiffen v. Roberts, 1 Esp. N. P. 261; Leavitt v. Simes, 3 N. Hamp. 14; Mills v. United States Bank, 11 Wheaton, 431. A bill, payable at so many days after date, must be presented by the period of its maturity. If payable on demand, or at sight, or at so many days after sight, it must be presented in a reasonable time, under the circumstances.3 Story J., 4 Mason, 345; Story on Bills, § 325. In Grant v. Long, 12 Louis. 402, it was held, that a bill of exchange, payable ninety days after date, must be presented for payment the day it became due, or the drawer would be discharged. The court held to the rule so strictly as not even to admit any excuse, even of two days from the last day of grace, derived from the irreg ularities of the mail. See supra, p. 82.

(f) Renner v. Bank of Columbia, 9 Wheat. 581; Mills v. United States Bank, 11 Ibid. 431; Bank of Washington v. Triplett, 1 Peters U. S. 25; Bank of Columbia v. Fitzhugh, 1 Harr. & Gill, 239; Planters' Bank v. Markham, 5 Howard (Miss.) 397; S. P. 6 Harr. & Johns. 180; 14 Mass. 303; 17 Id. 452; 3 Conn. 489.

1 The decision of this case was governed by the provisions of the R. S. of Mass. ch. 32, sec. 5.

2 Stacy v. Dane, 12 Wis. 629. And notice to the indorser may be given on the same day, after business hours. Coleman v. Carpenter, 9 Barr, 178. But an action commenced on the third day of grace has been held premature. Wiggle v. Thomason, 11 Smedes & Marsh. 452. Walter v. Kirk, 14 Ill. 55. Aliter in McKenzie v. Durant, 9 Rich. 61; Ammidown v. Woodman, 31 Maine, 580; Veazie Bank v. Paulk, 40 Maine, 109.

8 But if a note payable on demand provides for the payment of interest, this will be regarded as evidence that it was intended that the maker should have an extended credit, and an indorser or guarantor will be held liable accordingly. Lockwood v. Crawford, 18 Conn. 361.

when a bank, by usage, treats a particular day as a holiday, though not legally known as such, and made demands, and gave notice, on the day preceding; the parties to a note discounted there, and conusant to usage, are bound by it. (a) Though a bill, payable at a given time, has never been presented to the drawee for acceptance, the demand upon the drawee for payment is to be made on the third day of grace; for, by the usage of the commercial world, which now enters into every bill and note of a mercantile character, except where it is positively excluded, a bill does not become due on the day mentioned on its face, but on the last day of grace. (b) 1

(7.) Of the steps requisite to fix the drawer and indorsers.

There is no part of the learning relating to negotiable paper that has been more critically discussed, or in which the rules are laid down with more precision, than that which concerns the acts requisite to fix the responsibility of the drawer and indorsers, and the acts and omissions which will operate to discharge them. True policy consists in establishing some broad, plain rules, easy to be understood, and steady in their obligation.

The holder must not only show a demand, or due diligence to get the money of the acceptor of the bill or check,2 and of the maker of the note, but he must give reasonable notice of their default to the drawer and indorsers, or to their regularly authorized agent, to entitle himself to a suit against them. (c) The in

(a) City Bank v. Cutter, 3 Pick. 414.

(b) Bank of Washington v. Triplett, 1 Peters U. S. 25.

(c) Heylyn v. Adamson, 2 Burr. 669; Rushton v. Aspinall, Doug. 679; Williams v. United States Bank, 2 Peters U. S. 96. The demand and notice to the indorser are equally requisite, though he indorse the note after it is due. Stockman v. Riley, 2 M'Cord, 398; Poole v. Tolleson, 1 Ibid. 199. Notice to an agent having general power to transact the business of his principal is good, if the principal be abroad, but

1 A promissory note, payable on demand with interest, is a continuing security, which the holder may retain without demand without releasing the indorser. Merritt v. Todd, 23 N. Y. 28.

2 The drawer of a check will not be discharged by delay in demanding payment, unless he has suffered loss by such delay. Robinson v. Hawksford, 9 Adol. & El. (N. S.) 52; Pack v. Thomas, 13 Smedes & Marsh. 11; Purchase v. Mattison, 6 Duer (N. Y.) 589. The authority of an agent to indorse notes does not embrace the power to receive notice of the dishonor of the note. Valk v. Gaillard, 4 Strobh. 99. And a notice sent by mail directed to "the estate of H. O. deceased," H. O. being the indorser, is not sufficient to charge his executor. Massachusetts Bank v. Oliver, 10 Cush 567.

105 dorser, to whom notice is duly given, is liable, although notice be not given by the holder to the drawer, or a prior indorser, and this is the case equally as to foreign and inland bills

not if the agent has only certain special powers. De Lizardi v. Pouverin, 4 Rob. (Louis.) 394. Notice to the legal representative is good, if the party be dead, and the notary does not know who is the executor or administrator. Pillow v. Hardeman, 3 Humph. (Tenn.) 538. Notice is not good unless a protest of the bill or note precede the notice. Union Bank of Louisiana v. Fonteneau, 12 Rob. (Louis.) 120. In Harker v. Anderson, 21 Wendell, 372, Mr. Justice Cowen concludes upon a critical examina tion of the cases, that a check is, to all essential purposes, a bill of exchange, and that the holder must use due diligence to present it to the drawee for payment, before he can charge either the drawer or indorser, both of whom stand in the light of suretics; that nothing would excuse the want of this diligent presentment but the absence of funds in the hands of the drawce when the check was drawn, or fraud in the drawer in abstracting the funds. The court itself gave no opinion on the point. But I appre hend that this doctrine as to checks may be questioned. A check differs from a bill of exchange in several particulars. It has no days of grace, and requires no acceptance distinct from prompt payment. The drawer of a check is not a surety, but the principal debtor, as much as the maker of a promissory note. It is an absolute appropriation of so much money in the hands of the banker to the holder of the check, and there it ought to remain until called for, and the drawer has no reason to complain of delay, unless upon the intermediate failure of his banker. By unreasonable delay in such a case, the holder takes the risk of the failure of the person or bank on which the check is drawn. This is quite distinct from the strict rule of diligence applicable to a surety, in which light stands the indorser. See Story on Promissory Notes, §§ 490, 498, n. to the same point. It is true, however, that there is so much analogy between checks and bills of exchange, and negotiable notes, that they are frequently spoken of without discrimination, as see ante, 75, 77, 78, 104.4 Since the above case in 21 Wendell, the distinction between checks and notes has been judicially settled in Little v. Phoenix Bank, 2 Hill (N. Y.) 425, and held, that as between drawer and holder of a check, delay in presenting it did not discharge the maker, unless loss be shown; but that between the holder and indorser of a check, the usual diligence was requisite. The case of Kemble v. Mills, 1 Mann. & Gr. 757, is to the same effect, and that want of notice of the dishonor of a check is excused, if the maker had no right to draw, or the holder had received no damage from want of notice. S. P. Robinson v. Hawksford, 9 Adol. & El. (N. S.) 52.5

3 See Chapman v. White, 2 Seld. 412; Bowen v. Newell, 4 Id. 190. In this case a new trial was ordered and the case went to the Court of Appeals a second time, and is reported again in 3 Kernan, 290. The final conclusion of the court was, that under the proof, in the case, of usage in the State of Connecticut, checks drawn on banks in that state and payable at a future day, are not entitled to grace.

In Westminster Bank v. Wheaton, 4 R. I. 30, an order was drawn on the bank payable ninety days after date. The bank paid the amount of the draft to the payee the same day it was made and before maturity. The court held, that it was a check.

6 Mere priority in the drawing of a check upon a bank does not give to the holder a right of preference of payment over the holders of checks subsequently drawr Dykers v. The Leather M. Bank, 11 Paige, 612.

and checks. The indorsement is equivalent to making a new bill, and the holder may resort to him, without calling on any of the other parties; and it is the business of the indorser, on receiving notice, to give like notice to the drawer, and all persons to whom he means to resort. (a) The object of the notice is to afford an opportunity to the drawer and indorsers to obtain security from those persons to whom they are entitled to resort for indemnity. Notice to one of several partners, or to one of several joint drawers or indorsers, is notice to them all. (b) What is reasonable notice to the drawer or indorser is sometimes said to be a question of law, and at other times to be a question of fact. The question of reasonable notice is usually compounded of law and fact, and is a matter dependent upon the circumstances of each particular case,

4

(a) Bomley v. Frazier, Str. 441; Heylyn v. Adamson, 2 Burr. 669; Rickford v. Ridge, 2 Campb. 539; Chitty on Bills, c. 10, 530.

(b) Porthouse v. Parker, Campb. 82; Harris v. Clark, 10 Ohio, 5. Judge Story, in his Treatise on Bills, §§ 305, 362, 389, says, that notice to each joint drawer or indorser, if they be not partners, is requisite to bind them, and that notice to one is not sufficient for all. The case before Lord Ellenborough is one where the bill was accepted by one of three defendants, who do not appear by the case to be mercantile partners, and the dishonor of it was of course known to him, and the chief justice said, that the knowledge of one was the knowledge of all. The case is very brief and loose; but the decision in Ohio was to the very point, and on due consideration, the court said, that the three joint and several promisors were in the light of partners in that particular transaction. But still I think it may be questioned whether the better doctrine be not in favor of notice to each joint maker or drawer, when they are not regular partners. That is the judgment, after an elaborate discussion, in Shepard v. Hawley, 1 Conn. 367. And see, also, Bank of Chenango v. Root, 4 Cowen, 126; Willis v. Green, 5 Hill (N. Y.) 232; Union Bank v. Willis, 8 Metcalf, 504; Dabney v. Stidger, 4 Smedes & Marsh. 749, to the S. P.; Story on Promissory Notes, § 255. The holder of the bill or note is not bound to give notice of non-payment to any of the indorsers, except those he intends to charge, and the indorser who has notice must give his prior indorsers notice, if he intends to look to them for indemnity. Bayley on Bills, 228; Valk v. Bank of the State, 1 McMullan Eq. (S. C.) 414 ; Carter v. Bradley, 19 Maine, 62. Mr. Jusitce Story (Story on Bills, § 272) is of opinion that in the case of a qualified or conditional acceptance, a due protest and notice to the antecedent parties is still requisite in order to bind them, though the conditions be complied with before the bill becomes payable. For this he cites Pothier, (De Change, n. 47, 48,) in opposition to Bayley and Chitty on Bills.

1 And promissory notes. Tyler v. Young, 30 Penn. St. 143.

2 It was so held in State Bank v. Slaughter, 7 Blackf. 133. Also in Miser v. Trov inger, 7 Ohio (N. S.) 281.

3 Lawson v. Farmers' Bank, 1 Ohio (N. S.) 206.

4 Cocke v. Bank of Tenn. 6 Humph. 51. But where one partner is the maker and the other the indorser of a promissory note, regular notice of the dishonor of the note must be given to the indorser. Foland v. Boyd, 23 Penn. 476.

and proper for the decision of a jury, under the advice and direction of the court; and the mixed question requires the application of the powers of the court and jury. (c) The elder cases did not define what amounted to due diligence in giving notice of the dishonor of a bill, with that exactness and certainty which practical men and the business of life required. According to the modern

doctrine, the notice must be given by the first direct and regular conveyance; and if to the drawer, it must be according to the law of the place where the bill was drawn, and if to the indorsers, according to the law of the place where the respective in*106 dorsements were made. (d) This means, the first *mail

5

(c) Tindal v. Brown, 1 Term Rep. 167; Darbishire v. Parker, 6 East, 3; Hilton v. Shepard, 6 East, 14, in notis; Bateman v. Joseph, 12 East, 433; Chesapeake Ins. Co. v. Stark, 6 Cranch, 273; Mar. Ins. Co. v. Ruden, Ibid. 338; Taylor v. Bryden, 8 Johns. 173; Story on Bills, § 286. In Brahan v. Ragland, Minor (Ala.) 85, what is reasonable notice to an indorser was held to be a question of fact for a jury. In Aymar v. Beers, 7 Cowen, 705; The Bank of Columbia v. Lawrence, 1 Peters U. S. 578, and Remer v. Downer, 23 Wendell, 620, it was held, that the reasonableness of notice, or demand, or due diligence, when the facts were settled, was a question of law for the court, and not a question of fact for a jury. But the question is so mixed up with circumstances, and is so compounded of the ingredients of law and fact, that it will be found, in practice, very difficult to retain on the bench the exclusive jurisdiction of the question. In Ohio, by act of 1820, bonds, bills, and notes for money, and payable to order or bearer or assigns, are declared to be negotiable by indorsement thereon, so as to enable the assignee to sue in his own name; and if demand be made at the time the same becomes due, or within a reasonable time thereafter, it shall be adjudged due dili gence, sufficient to charge the indorser. Statutes of Ohio, 1831; Chase's Statutes of Ohio, vol. ii. 1137.

(d) Story on Bills, § 285. Until an act of the Assembly, since 1823, in Louisiana, the post-office was not, in that state, a proper place of deposit for notice to indorsers. 19 Martin, 491. It is not now, in those post-towns where the indorser lives within three miles of the post-office, and there is no penny-post establishment. Louisiana State Bank v. Rowel, 18 Ibid. 506; Clay v. Oakley, 17 Ibid. 137.7 This is also the rule in Tennessee, and notice through the post-office is not sufficient under like circumstances. Bank v. Bennett, 1 Yerger, 166. In Louisiana, if the residence of the party to be charged cannot be found, after due inquiry, notice lodged at the nearest postoffice, addressed to the party at the place where the contract was made, is sufficient. Preston v. Daysson, 7 Louis. 7.8

5 Bennett v. Young, 18 Penn. 261; Smith v. Fisher, 24 Id. 222. See Metcalfe v Richardson, 20 Eng. L. & Eq. 301, and Wyman v. Adams, 12 Cush. 210.

6 One who takes a note in payment which he is unable to collect, is not bound to give notice with the same promptness as an ordinary indorser. He has a reasonable time. Robson v. Oliver, 10 Adol. & El. (N. S.) 704.

7 By Rev. Stat. of Louisiana, 1856, p. 45, § 69, notice of protest may be put in the post-office whenever the parties to be notified shall not reside in the town or city where protest shall be made.

8 Rev. Stat. of Louisiana, 1856, p. 45, § 1C