Howard v. Ives — 1 Hill & Den. 263

Majority

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Howard, president, &c. vs. Ives.

Headnote

Where H. an endorsee of a bill of exchange, endorsed it to a bank for the mere purpose of collection, and the notary employed by the bank transmitted notice of protest by mail to H. on the next business day after presentment, &c. who, on the next day after receiving it, mailed notice to his endorser: Held, sufficient to fix the liability of the latter, though, had the notice been sent directly to him, he would have received it sooner; and this, semble, whether the notary be regarded as H.’s agent, or that of the bank.

A bank, however, receiving a bill of exchange in this way, is a principal for the purpose of transmitting notice of protest, and consequently a notary entrusted by it for that purpose is its agent

The next day, in the sense of the rule as to reasonable notice of protest through the post, is the next business day; and therefore, where protest takes place on Saturday, a notice mailed on the following Monday is in time.

If two mails leave on the day for sending notice, and one closes before the usual business hours, a notice is regular if transmitted by the other.

Whether, if there are several mails leaving on the same day at different horns, the party may in all cases elect by which he will send, quere.

In charging consecutive endorsers by notices from one to the other, the party re-1 ceiving notice is never bound to forward it to his immediate endorser on the same day it reaches him, but may wait till the next.

Assumpsit, tried at the Saratoga circuit, in May, 1840, before Willard, C. Judge. The action sought to charge the defendant as endorser to the plaintiff of a bill of exchange, drawn on and accepted by one Webster, of the city of New-York. The plain-. tiff had endorsed it to the Union Bank of that city, for collection; and the latter gave it to their notary, who presented and protested

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it for non-payment, on Saturday, August 31st, 1839, between the hours of three and five P. M. On Monday following, the notary mailed notice of protest to the plaintiff, enclosing another for the defendant, in season for the New-York five o’clock mail to Troy; at which latter place the plaintiff resided. The plaintiff received these on Tuesday following, at eight o’clock, A. M. ;' and the same day, after nine o’clock, A. M., the notice of protest intended for the defendant, was mailed at Troy, directed to him at Lansingburgh, his place of residence*; but the mail for the day had closed before this was done. It appeared in evidence that the course of mails from. New-York to Troy, was as follows : One mail was closed on Saturday at three o’clock P. M., and started at five P. M.—two left on Sunday—and, on Monday, one closed at half past five A. M., leaving at seven A. M., but there was no other on that day except the one by which the notice in question was sent.

The defendant objected to the plaintiff’s right of recovering, on the following grounds: 1. That notice of protest should have been mailed at New-York in time for one of the mails which left on Sunday; or, at all events, in time for the Monday morning’s mail; 2. That the notice mailed at Troy, by the plaintiff to the defendant, should have been deposited in the post office before the mail for Lansingburgh had closed; 3. That notice should have been mailed at New-York directed to the defendant at Lansing-burgh.

The circuit judge overruled the objections; whereupon exceptions were taken, and the defendant now moved for a new trial ón a bill of exceptions. ■

C. L. Tracy, for defendant.

S. G. Huntington, for plaintiff.

For the purpose of transmitting notice of protest, the Union Bank, though in fact a mere agent to collect, must be regarded as a principal. The legal interest in . the bill passing by endorsement to that bank, it must be considered the holder at the time when the bill was presented for payment ; and the notary must be considered, therefore, as servant

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to that Bank. (Mead v. Engs, 5 Cowen, 303, 308. Scott v. Lifford, 9 East, 347.) (a) According to the last case cited, probably the same time would be allowable whether the Union Bank be regarded as a mere agent, or as principal. (And vide Haynes v. Birks, 3 Bos. & Pul. 599, 601.)^[1]

But whether this is so or not, it was regular to mail the no* tice to the plaintiff, on the next day after presentment and protest. The holder is never required to mail notice to his endorser the very day on which default is made in payment. (Chit, m Bills, 513, Am. ed. of 1839, and the cases there cited.)

The next day, means the next business day. Here, the protest being on Saturday, the notice was properly mailed on the next Monday, leaving the intermediate Sunday out of the com-, putation. (Id. 519.) Haynes v. Birks, before cited, is in point. ( Vide also Wright v. Shawcross, 2 Barn. & Ald. 501, note.)^[2]

Mailing in season for either of the two mails on Monday was sufficient. It is urged, that the morning post was neglected; but the mail for that post closed before the common hours of business. The question is, whether the holder used ordinary diligence? 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 next after the hours of business commence for the day. This is the next practicable or convenient post. (Mead v. Engs, 5 Cowen, 307, per Sutherland, J.)

The mailing by the plaintiff at Troy was cl,early in season. It was, done the very day on which the plaintiff received notice, no matter whether before or after the post had departed for Lansingburgh. In this method of. charging endorsers and drawers, by consecutive notices from one party, to the next immediately preceding him, the former is never bound to forward notice on the very day upon

(a) (a) And see Church v. Barlow, ( 9 Pick. 547 ;) also, Colt et al. v. Noble, ( 5 Mass R. 167 .)

(b) (b) Eagle Bank v. Chapin, ( 3 Pick. 180 .)

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which he receives it; but may always wait till the next (Chit, on Bills, 515, 516, Am. ed. of 1839. Chit. jun. 62, a, .63, Am. ed. of 1834. Bayley on Bills, 264, Am. ed. of 1836. Bray v. Hadwen, 5 Maule & Selw. 68, 70, and cases there cited. Williams v. Smith, 2 Barn. & Ald. 496, 500. Geill v. Jeremy, 1 Mood. & Malk. 61.)^[3] The motion for a new trial is therefore denied.

Rule accordingly.