some plausible grounds for contending that this variance was calculated to mislead him. But the special verdict finds that from the 5th day of February, 1828, (the date of a note for which the one now in question was a renewal,) down to the day of the trial of this cause, there was no other note of the said Humphrey Peake endorsed by the defendant, discounted by the bank, or placed in the bank for collection or otherwise. There was, therefore, no room for any mistake by the endorser as to the identity of the note. The case falls within the rule laid down by this court in the case of Mills v. The Bank of the United States (ante, page *368), that every variance however immaterial, is not fatal to the notice. It must be such a variance as conveys no sufficient knowledge to the party of the particular note which has been dishonored. If it does not mislead him, if it conveys to him the real fact without any doubt, the variance cannot be material, either to guard his rights or avoid his responsibility. In that case, as in the one now before the court, it appeared that there was no other note in the bank endorsed by Mills; and this the court considered a controlling fact, to show that the endorser could not have been misled by the variance in the date of the note, which was the misdescription then complained of.

The judgment of the Circuit Court is accordingly reversed, and the cause sent back with directions to enter judgment for the plaintiffs, upon the special verdict by the jury.

*" Perhaps Lord Mansfield never conferred so great a benefit [*388 on the commercial world," said Lord Denman,(1) "as by his decision of Tindal v. Brown, 1 Term, 167, where his perseverance compelled them, in spite of themselves, to submit to the doctrine of requiring immediate notice as a matter of law." That the reasonableness of notice, in respect to time as well as to other matters, is, in all cases where the facts are ascertained, a question for the court, and not for the jury, is now a settled principle in the commercial law of all the States in this country.(2) In Alabama, at an early period, it was held (3) that the (1) Furze v. Sharwood, 2 Q. B., N. S. 415; S. C., 3 Gale & Davison, 129.

(2) Hussey v. Freeman, 10 Massachusetts, 84, 86; Whitwell et al. v. Johnson, 17 Id. 449, 453; Nash v. Harrington, 2 Aikens, 9, 11; Haddock v. Murray, 1 New Hampshire, 140; Halsey v. Salmon, Pennington, 916; Sussex Bank v. Baldwin & Shipman, 2 Harrison, 488; Jones v. Wardell, 6 Watts & Sergeant, 399 (overruling Gurly . The Gettysburg Bank, 7 Sergeant & Rawle, 324); Phillips v. McCurdy, 1 Harris & Johnson, 187, 190; Pon's Ex'rs v. Kelly, 2 Haywood, 45; Duggan v. King, Rice, 240; Dodge et al. v. Bank of Kentucky, 2 Marshall, 610, 616; Noble et al. v. Bank of Kentucky, 3 Id. 262. (3) Brahan & Atwood v. Ragland, Minor, 85.

strict commercial rules as to notice were not applicable there, and that the reasonableness of notice was a question for the jury: but in 1828, by statute, Aiken's Digest, 329, the remedy on bills of exchange, and on notes payable in bank, was ordered to be governed by the rules of the law merchant, as to days of grace, protest, and notice; and since then, the legal rule has always been recognized.(1)

[Upon bank checks, unless on their face payable at a future day, there are no days of grace and notice (if due) is due accordingly. Where payable on their face at a future day, they are subject to days of grace, and have the incidents as to notice of ordinary bills of exchange.(2)

66

(1) Foster. McDonald, 3 Alabama, 34; Tarver's Ex'rs v. Boykin, 6 Id. 353; Brown v. Turner, 11 Id. 752, 755; Smyth v. Strader et al., 4 Howard's Supreme Court, 405, 415. (2) Bowen . Newell, 4 Selden, 190, overruling S. C., 5 Sandford, 326, and denying In the matter of Brown, 2 Story, 502; S. P., Taylor v. French, 4 E. D. Smith, 459. [It is probable that the exact legal meaning of a "check," as distinguished from a "draft," or "bill of exchange," has not yet been fully decided. By a "check," in common parlance, is meant a simple order to pay the bearer, or to the order of a drawee, a certain sum named on the paper. A check is usually drawn against a fund deposited or existing, on some "bank" by name, in the drawer's place of residence, and is meant to be payable at once, on sight, or demand, though no such words as at sight," or on demand," are expressed on the face of the paper. It is confined to the fewest words possible: never containing, at the beginning, "be pleased," or "please;" nor at the end, "without further advice," or "by your obedient servant," or any like words usually found on bills of exchange. At the same time, it is probable that none of these characteristics, except perhaps those of being against an existing fund and being payable at sight, are essential characteristics of checks: for a check is sometimes given on a bank at his place of residence, when the drawer is far away from home. They are sometimes, even now, and formerly generally were, addressed to the "cashier." The fact of the document being more respectfully signed, or marked by a few words of surplusage, more or less, or being more in the form of a request than of an order, which are usually characteristics of a bill as distinguished from a check, would probably not convert into a bill that which would otherwise be a check. The legal difference between the definitions of "checks" and "bills of exchange," as to this matter of days of grace, would most likely depend on the fact, whether there was supposed to be an existing fund and whether the instrument was by its terms payable or not payable at sight; though in Rhode Island (5 R. I. 31) an order thus: "Westminster Bank. Ninety days after date pay to the order of J. W., $450," was held to be a check and without right to days of grace. Such, however, Minturn. Fisher, 4 Calif. 35. In Louisiana, checks and bills are assimilated; 14 Louisiana, Ann. 457, succession of Kercheval.

Since the foregoing remarks were written, the views they express received a confirmation from the Supreme Court of Ohio in the case of Morrison v. Bailey, 5 Ohio State, 16; see also dicta in the late very important case of the Merchants' Bank v. State Bank, 10 Wallace, 647.

The suit in the former case was on an instrument in these words:

CLEVELAND, O, June 30, 1833. Wicks, Otis & Brownell. Pay to L. F. Burgess, on the 13th day of July, '53, or order, three hundred dollars.

Endorsed by L. F. Burgess."

R. B. BAILEY.

The parties all resided in Cleveland, Ohio, where the instrument was drawn, and the drawees, Wicks, Otis & Brownell were bankers.

The question was whether this was a bill of exchange and entitled to grace, or a check

The dictum or declaration in Barnet v. Smith, 10 Foster, 256, and one to nearly the same effect in Foster v. Paulk, 41 Maine, 429, that " a bank check is substantially the same as an inland bill of exchange, and in general is governed by the law applicable to bills of exchange and promissory notes," are true in reference to the points which were before the court in those cases; but the question of "days of grace" was not before the court. See Bradley v. Hamilton, 5 Harrington, 305.] *It is settled, that where the parties reside in the same town, notice of the dishonor of a bill or note given at any time on the next day after the default, is sufficient.(1)

[*389

and not so entitled. The case was well considered and the court in deciding that it was a bill, and entitled to grace, declares as follows:

"These two classes of commercial paper, although in many respects similar, are to be distinguished in the following particulars, to wit:

1st. A check is drawn upon an existing fund, and is an absolute transfer or appropriation, to the holder, of so much money in the hands of the drawee; whereas a bill of exchange is not always, or necessarily, drawn upon actual funds in the hands of the drawee, but very frequently drawn in anticipation of funds, or upon a previously arranged credit.

24. The drawer of a check is always the principal; whereas the drawer of a bill frequently stands An the position of a mere surety.

3d. As between the holder of a check and an endorser, demand of payment within due time is essential to the liability of the latter. Where the parties reside in the same place, the holder should present the check on the day it is received, or within business hours of the following day; and when payable at a different place from that in which it is negotiated, the check should be forwarded by mail on the same, or the next succeeding day, for presentment. But days of grace being allowed to bills of exchange, the time for demanding payment of a bill is different.

4th. As between the holder and drawer, however, mere delay in presenting a check in due time for payment, would not discharge the latter, unless he had been injured thereby, and then only to the extent of his loss; but a different rule, in this respect, prevails in case of a bill of exchange.

5th. A check requires no acceptance, and, when presented, the presentment is for payment. 6th. It is not protestable, or in other words, protest is not requisite to hold either the drawer or an endorser."

From these distinguishing characteristics, arising out of the nature of these two classes of instruments, it would follow that a check is always payable on presentation and demand; and that if a draft for money be an appropriation of an existing fund, and in the usual form of a check except that it is payable on a specified day in future it is a bill of exchange and entitled to days of grace. This decision agrees apparently with the English ideas as to the nature of checks and bills of exchange. See Keene v. Beard, 98 E. C. L. 379; and Seth v. Norton, 2 M. & Rob. 404, n. ; and Ramchurn, app. v. Luchmechund, resp., 9 Moore's P. C. 48, 69, therein cited. However, as if to involve the matter with us in everlasting uncertainty, we have in the same State which decided this American case, a decision a few years afterwards, which so far qualifies the language of the court's opinion as that if a draft for money, otherwise in the usual form of a check, is payable on a future specified day, it is primâ facie, but not necessarily, a bill of exchange; and that when such instrument is drawn on a bank or banker, and is designed by the parties as an absolute transfer and appropriation of an actually existing fund belonging to the drawer in the hands of the drawee, it is nevertheless a check and not a bill of exchange, and not entitled to days of grace. Andrew v. Blackly, 11 Ohio St. 89.]

(1) Grand Bank v. Blanchard, 23 Pickering, 305 (overruling the dictum in Woolbridge et al. . Brigham et al., 12 Massachusetts, 403, 404; that notice should be given on the same day); Remington v. Harrington, 8 Ohio, 507, 510; Duggan v. King, Rice, 240, 243; Shrieve and Combs v. Duckham, 1 Littell, 194; Pearson & Co. v. Duckham, 3 Id. 385; Moore v. Somerset, 6 Watts & Sergeant, 262; Whittlesey & Stone v. Dean, 2 Aikens,

When the parties reside in different places, the rule laid down in Lenox v. Roberts, and Bank of Alexandria v. Swann, that notice must be sent by the mail of the succeeding day, is the established rule of every court in the United States, subject to the understanding that the mail of that day goes out at a convenient hour. A different rule, however, is laid down by the learned author of the Commentaries on American Law, who says,(1) that the limitation in Lenox v. Roberts is too strict, and that the party has the whole of the next day for mailing notice, so that if notice is sent by the first mail that goes after the day next to the third day of grace, it is in season, though it be not mailed in season to go by the mail of the day after the default. The English cases cited by the learned author do not sustain this conclusion: In Bray v. Hadwen, 5 Maule & Selwyn, 68, as in Wright v. Shawcross, 2 Barnewall & Alderson, 501, note, the notice having arrived on Sunday, was to be considered as having been received on Monday, and then the party had till next day's post for giving notice: in Geill v. Jeremy and another, 1 Moody & Malkin, 61, no post went out on the day following the day of the default, and on that account the party was allowed the whole of that day for mailing notice, but the rule was declared to require the employment of the "next post after the day" on which notice is received; and in Hawkes v. Salter, 4 Bingham, 715, the bill was dishonored on Saturday, and the mail left at half-past nine o'clock on Monday, and no doubt it closed before that time: and this being an unreasonable hour, Best, C. J., expressed himself clearly of opinion that it would have been sufficient if the letter had been put into the post before the mail started on Tuesday morning. In Williams v. Smith, 2 Barnewall & Alderson, 496, 500, the rule established by Lord Tenterden, is, that notice is to be sent by the post of the day following that in which the party receives intelligence of the dishonor. These and other cases have explained and enlarged the dictum of Marius, repeated in Tindal v. Brown, 1 Term, 167, and Darbishire v. Parker, 6 East, 3, 8, that notice should be sent by the next post; so as to fix its meaning to be, that notice must go by the post of the next day, which is the next convenient post; but they have not given the whole of the next day for mailing the notice, or till the post of the third day for sending it, as the learned commentator supposes. The English judges say, that each party has an entire day for giving notice; but their meaning is, that the notice may go by the mail of the next day, and need not be sent by the mail of the same day. The distinguished author of Commentaries on the Law of Bills of Exchange (Judge Story), has offered yet another explanation: he expresses the opinion that the holder is entitled to one entire day to prepare his notice, and that, therefore, it will be sufficient, if he sends it by the next post that goes after twenty-four hours from the time of the dishonor (p.

(1) 3 Comm. 106, and note (d) 3d edition.

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320, note); but this suggestion appears to be quite novel and unsupported. The subject is one of great importance; but the *American cases are so clear and concordant as to render it quite certain that the views of these eminent writers are somewhat defective in precision.

The unquestionable general principle is, that notice must be sent by the next convenient or practicable mail. And in ascertaining what is meant by this, it may be considered as settled that notice need not be mailed on the day of the default, or the day on which notice of it is received: the party need not take any step on that day, but has till a convenient hour on the next day for putting the notice into the post office.(1) The post that goes out at a convenient hour on the next day, is the conveyance by which notice ought to be sent; but if the post of that day goes out too early to allow notice to be prepared conveniently within business hours, then the subsequent post may be employed. And Sundays, and public holidays, as the Fourth of July,(2) are to be wholly rejected from the account.(3)

In the Federal courts, the rule in Lenor v. Roberts, explained in Bank of Alexandria v. Swann, is adopted, also, in Mitchell v. Degrand, 1 Mason, 176, 180, in which it is said that notice must be sent by the next practicable mail; and in United States v. Barker's Administratrix, 4 Washington, 465, 468, Judge Washington, who says that notice must be given by the earliest practicable post after the bill is dishonored, explains it to mean, that, the letter giving the notice should be put into the office early enough to be sent by the mail of the succeeding day; and this case was affirmed on error.(4) Indeed, in Fullerton et al. v. The Bank of the United States, 1 Peters, 605, 618, the opinion that notice is in time, if mailed early enough to go by the first mail that goes after the day next to the third day of grace, appears to be directly condemned; and the rule adopted, that notice must go by the mail of the next day, provided there be a mail on that day that does not go out before early business hours.

In Massachusetts, the same authority is followed; and in Whitwell et al. v. Johnson, 17 Massachusetts, 449, 454, it is decided, that the next day is early enough for sending notice, and if there should be two mails a day, whether notice goes by the first or the second of those mails, is immaterial, provided it is put into the post office early enough

(1) Bank of Alexandria v. Swann; Hartford Bank v. Stedman & Gordon, 3 Connecticut, 489, 495; Farmers' Bank of Maryland v. Duvall, 7 Gill & Johnson, 79, 92; Howard v. Ives, 1 Hill's N. Y. 263, 265; Whitwell et al. v. Johnson, 17 Massachusetts, 449, 453. (2) Cuyler v. Stevens, 4 Wendell, 566.

(3) Agnew v. The Bank of Gettysburg, 3 Harris & Gill, 479, 495; Eagle Bank v. Chapin. 3 Pickering, 180; Burkmyer & Adams v. Whiteford, 6 Gill, 16; Farmers' Bank v Vale, 21 N. Y. 487.

(4) 12 Wheaton, 559.