Sewall v. Russell

3 Wend. 276 | N.Y. Sup. Ct. | 1829

By the Court,

Savage, Ch. J.

The only question is, whethfer the defendants had due notice of the dishonor of the bill. Where parties to a bill reside in different places, notice of the dishonor must be given by the next mail after information is received. This however means reasonable diligence; and the above rule is not literally applicable where there is not sufficient time between the arrival and departure of the mails to prepare the notice, consistent with necessary attention to other concerns; but no more than one day should intervene where there is a daily mail between the two places. (Chitty on Bills, 291, and cases cited. 5 Cowen, 303, and cases cited.) This rule is applicable to the parties here.

In the case last referred to, where the bill passed through two banks for the purpose of collection, arid where there was a delay of one day at one of the banks, we held that the banks were, For the purpose of giving notice, to be considered holders, though they had no other, interest but as .agents for collection. In.this case, the plaintiffs at Boston ■received information of the dishonor of the bill on the 30th September. It was their duty to have given notice by the ■mail which left Boston for New-York on the 1st of October. .They did in fact send notice by that mail, which, if directed to the defendants, would have been sufficient; but it was addressed to their agent at New-York, and was received by him on- the 3d October. Had he communicated the notice on the same day, the defendants would have had no ground of complaint. He did not do so on that day, but on the next day (the 4th of October) he gave notice. Had this agent been a party to the bill, or had he been so only nominally by having his name on the bill for the purpose of collection, he would have been justified in withholding the information one ■day, according to the authority first cited. But as he was ■the mere agent of the plaintiffs, he should have given immediate notice. This point has been so decided in The United States v. Barker, (12 Wheaton, 559, 60, 61,) in which case a notice, received by an agent on the morning of the 11th 'May, was given to the defendant on the 12th; the circuit court held that the agent was guilty of negligence,' and the defendant, who. -wdsan-eHor'ser, ' was- discharged. This decisión was confirmed by the supreme court of the United ¡States, and is in point. It is reasonable also that if a party chooses to give notice through an agent, hé shall cause such notice to be given as éarly as the defendant would have received the same notice had it been sent by mail.

I am therefore of opinion that, according to the rules applicable in such cases, the notice to the defendants was given too-late, and the motion for a new trial should be denied.