20. A Demand Must Be Proved

A demand, unless it is excused, or due diligence in trying to make a demand, must be proved in order to recover from the indorser. In an action against the maker this is not requisite, for he is liable in any event.

21. Notice

The notice is authentic information from the proper source that the note has not been paid, and serves a double purpose. One purpose is to notify the indorser that the holder looks to him for payment, and the other is to enable the indorser to secure himself against loss. For, as he is now absolutely liable, in truth, ought to pay at once and seek to recover the amount, if possible, from the maker, he may pay the note without delay and proceed forthwith against the maker. The notice thus given to the indorser is almost always in writing; though if it were given by the proper person, one having an interest in the note, as owner or as agent representing him, a verbal notice would suffice.

The holder need notify only his immediate indorser, or only the indorsers whom he intends to hold. A very common practice is for the holder to notify his immediate indorser, and to inclose the notices to him for the preceding indorsers, which he is expected to send to them in a similar manner. By doing this he fulfills his whole duty. He perfects his right to recover against all by properly notifying the last indorser. Another and very common practice is for the holder to give a direct notice to each indorser, and if it would ordinarily be received as soon as it would by regular transmission through all the parties, it is sufficient. In most cases, doubtless, the notice thus sent is received earlier.

Formerly it was the custom of banks to do their own protesting, through their own uncommissioned officers. The records of presentation and refusal of payment were made in a book kept for that purpose, and this was often used in courts as evidence of what was done in the way of demanding payment and notifying indorsers.

In like manner when a notary is employed, and he generally is, for the reason that he knows how to perform the business, a notice is sent by him to each indorser if he knows where to send it; but very often not all of the addresses are known. The practice is growing of indicating on the note where the notice shall be sent, and this is desirable.

A notice of an indorsement by a partnership need not be' sent to each member. Even after it has been dissolved a notice to one partner is sufficienl to bind the other mem bers. Persons who own notes and bills jointly sometimes indorse them, and when they do they are not liable as partners. Consequently, a notice of the non-payment of such a hill to one will not discharge both. Each must have notice in order to be held for its payment.

In sending a notice the mail can be used in some cases, but not in all. When the person who is to be notified resides in the same city as the notifier, then the notice must be served personally, or at his house, or place of business. It can not be deposited in the post office. But a notice addressed to an indorser deposited in the post office of the city where both the notifier and indorser reside, is now regarded as proper by furnishing proof that it was received in time. In many states the legislatures have authorized the use of the mail for this purpose.

When the persons to be notified reside in different places from the notifier, even though the distance may be very short, but in an adjoining town or other municipality, or at such a distance as would render the employment of a special messenger expensive, the mail can be used. Much legal ingenuity has been expended in defining the precise boundary between personal and transmitted notice. A statute authorizing the sending of a notice through the mail in all cases would terminate this series of small legal puzzles.

Many questions have arisen concerning the post office to which the notice must be sent. The law does not imperatively require that the notice be sent to the post office nearest to the residence of the indorser, for this can not always be known without considerable inquiry, delay, and expense. If, therefore, in the absence of precise knowledge, the notice is sent to the post office at the county seat of the county where the indorser resides, this will suffice, for if he lives at a place nearer to another post office, at which he usually receives his letters, the postmaster will doubtless forward the notice to that office. Another rule has been established that is reasonable and in most cases can be easily applied. A notice may be sent either to the post office nearest to the indorser's residence or to the one at which his mail communications are usually received.

A notice sent on Sunday is invalid, and if an indorser should receive it, he would not be bound, nor would the irregularity in the service be regarded as waived.

A holder is not responsible for the receiving of a notice by the indorser. When the notice is properly prepared, directed, and sent within a specified time, the holder has performed his whole duty in the matter. He is not an insurer for its safe and regular transmission. To this rule there is an important exception. When the mail is substituted for personal service, a practice that is growing, the holder who afterward sues the indorser, if a note is not paid, must prove that the notice was received. Can not an indorser escape by denying the receipt of the notice? This is possible. A good practice when sending a notice is to put on the outside of the envelope a direction to return the envelope if not delivered in three or five days. If the letter is not returned, the courts have held on several occasions that, considering the care exercised in conducting the public business, the fact of its non-return should be considered as satisfactory evidence that the person to whom the letter containing the notice was addressed received it.

There are occasions when notices need not be given. The first that may be mentioned is war, which slops the usual communication between the parties. Thus, the seiz-ing of mails between Pittsburg and New Orleans during the Civil War was a valid excuse for omitting to send a notice of the dishonor of a bill. The insolvency of the maker does not dispense with the necessity of demand and notice of non-payment.

There must be due diligence in notifying, otherwise the indorser is discharged. What this i. depends on circumstances which must be ascertained, when they are disputed, by the jury. Two general rules have been established for determining the time. It the person to be notified lives in the same town as the notifier, the notice must be given by the close of the next day after it is received. There [ore a delay to lend notice of the non-payment of a note on Friday until the next Monday would be too long. If the parties live in different places, the notice must be sent by the next practicable mail on the morning of the day after making the demand. If the mail closes at so early an hour that it is impracticable to forward a letter, one sent by the next mail will be in time.

The time established for an indorser to notify his prior indorser is an entire day; and an agent for collection, who has indorsed a note or other instrument, must receive and give notice like any other indorser.

Sometimes a mistake is made in dating a notice. Is the indorser then relieved? The law is very strict. If the demand was made on the proper day and the indorser is notified that the demand was duly made, the indorser will be held, even though the notice was dated the day afterward. But if the date of the notice sent to the indorser without any explanation shows that the notice was sent too early, he is relieved.