Post Office time enough for the first mail on the day next after that on which it is dishonored. Thus, if the third day of grace be Tuesday, and the note or bill is dishonored, and the drawer or indorser live out of town, the notice may be sent on Tuesday, but it must be put into the Post Office on Wednesday. The same rule, as to the time of notice, applies where the indorser and holder live in the same town.

Each party successively, into whose hands a dishonored note may pass, is allowed, it would seem, one entire day, for the purpose of giving notice. If the demand be made on Saturday, the notice may be given on Monday.

In what cases a want of notice is excused. If the drawee refuses to accept, because he has no effects of the drawer in hand, and the drawer had no right to draw, and no right to expect his bill would be paid, protest and notice to the drawer are not necessary. This exception applies only to the drawer, and not to the indorser of a bill drawn without funds; and it is advisable even to give due notice to the drawer, to avoid any mistake; for if the drawer should suffer any detriment by reason of not having notice, he would probably be discharged.

If the holder or his agent goes to the place of business or dwelling-house of the person entitled to notice, within seasonable hours, and finds the place shut, and no person there to receive notice, he is not obliged to go a second time, or even to leave a notice. If, however, the party entitled to notice, has changed his residence, notice should be sent to his new residence.

The holder is also excused for not giving regular notice to an indorser, of whose place of residence he is ignorant, provided he uses reasonable diligence to discover where the indorser may be found. And where he has used reasonable diligence to discover the residence of the indorser, notice given as soon as it is discovered is due notice.

Notice may be waived by an express agreement between the parties, in the same manner as a demand for payment, which see.

NOTICE.

Form of notice. - There is no precise form of words necessary to be used in giving notice of the dishonor of a bill or note, but the language used must be such as to convey notice to the party what the bill or note is, that payment has been refused by the maker or acceptor, and that the holder looks to him for the amount. The notice may be given verbally or in writing, and must give information of the fact, that the note is dishonored by the fault of the maker.

Thus, a notice given to the indorser of a note, merely stating that the person giving notice holds the note, and that it is due and unpaid, and demanding payment, is not sufficient to charge the indorser; for it does not inform him that demand has been made of the promisor, and payment refused, or in any other way, by express declaration or reasonable implication, give him information that the note was in fact dishonored.

PROTEST, WHEN NECESSARY.

Foreign and Inland Bills. If the bill be dishonored, the holder should have it immediately protested, and the protest should be made by a notary-public, but if none can be procured, it is said that it may be made by an inhabitant, in presence of two witnesses.* (Bayley, 259.) By the general law-merchant, no protest is required

On this day of in the year of our Lord one thousand eight hundred and I, B. H. C., Notary Public, by legal authority admitted and sworn, and dwelling in the City of Boston, at the request of W. X., of -, went with the original Note [or Bill of Exchange] of which the foregoing is a true Copy, [here insert the Note or Bill.]

WHEREFORE, I, the said Notary, at the request aforesaid, have protested and by these presents do solemnly protest against the Drawer of said Note, [or Bill] Endorser[s], and all others concerned therein, for Exchange, ReExchange, and all Costs, Charges, Damages, and Interest, suffered and sustained or to be suffered and sustained, by reason or in consequence of the, non-acceptance, or, [non-payment] of said Note [or Bill] of said C. D. Thus done and protested in Boston, aforesaid, and my Notarial Seal affixed, the day and year last written.

B. H. C., Notary Public.

Protest,

Record,

:

to be made upon the dishonor of any promissory note; but it is exclusively confined to foreign bills of exchange. Neither is it a necessary part of the official duty of a notary to give notice to an indorser of the dishonor of a promissory note. But a state law or general usage may overrule the general law merchant in these respects. (2 U. S. Rep. 66.)

Where a protest is necessary, it is not indispensable that it should be made by a person who is a notary. (ib.)

The relation which exists between a notary and the holder of a note, with regard to the protest of the note, and notice to indorsers, is that of principal and agent, and no more strict performance of duty is required of the notary than is indicated by the uniform practice of the place where the note is protested. (6 W. & S. 264.)

A bill drawn in one state and payable in another, is a foreign bill, so as to make the protest admissible in evidence, although all the parties were residents in the state where the bill was drawn. (10 Mass. 99.)

A drawer or indorser of a foreign bill of exchange is liable to the expenses of the protest, and to a rate of damage established by law or usage.

With respect to an Inland Bill, or Note, for which the law does not require a protest, it is sufficient, in all cases, to give notice of non-payment, to entitle the holder to claim interest of the drawer.

Whether an accommodation note can be protested for non-payment, so as to authorize a charge against the maker and his sureties for notarial fees? At any rate a protest is unnecessary. (1 Alabama, 425.)

CHECKS, OR DRAFTS.

Checks or Drafts are orders addressed to the cashier of a bank or a banker, directing him to pay the sum specified in the check to the person named in it, or bearer on demand.

In point of form, checks nearly resemble bills of exchange, except that they are uniformly payable to bearer, and should be drawn upon a bank or regular banker; though this latter point is not essential. They are assignable by delivery only; and are payable instantly on presentment, without any days of grace being allowed.

Checks are usually taken conditionally as cash; for unless an express stipulation be made to the contrary, if they be presented in due time and not paid, they are not a payment.

It is difficult to define what is the due or reasonable time within which checks, notes, or bills should be presented. A man is not obliged to neglect all other business, that he may immediately present them: nevertheless it is the safest plan to present them without any avoidable delay; and if received in the place where payable, they had better be presented that day, or next at furthest.

A creditor is not bound to take a check on a bank, transmitted to him as payment of his debt, and he may commence an action for the debt while the check is yet in his hands.

A check on a bank payable at a future day, is not a bill of exchange, and requires no notice of dishonor.

DAMAGES ON PROTESTED BILLS.

On bills payable without the United States, not beyond Cape of Good Hope, &c. - When a bill of exchange, drawn or indorsed in Massachusetts, and payable without the limits of the United States, (excepting places in Africa beyond the Cape of Good Hope, in Asia and the islands thereof,) is duly protested, the party liable for the contents, must, on due notice and demand, pay the same, at the current rate of exchange at the time of the demand, and damages at the rate of five per cent upon the contents, with interest, to be computed from the date of the protest, in full of all damages, charges and expenses. (R. S. c. 33.)

On bills payable beyond Cape of Good Hope, &c.Except in the cases before mentioned, the party liable for the contents shall, on due notice and demand, pay the same at its par value thereof, with twenty per cent thereon, in full of all damages, interest and charges. (ib.)

On bills payable out of this state, but within United States. Damages on inland bills which are protested, are as follows:- On bills payable in the states of Maine, New Hampshire, Vermont, Rhode Island, Connecticut, and New York, two per cent; in New Jersey, Pennsyl

vania, Maryland, Delaware, three per cent; in Virginia, and the District of Columbia, North Carolina, South Carolina, and Georgia, four per cent.; in any other of the United States, or the territories thereof, five per centum, with interest and costs. (Laws 1837.)

On bills payable within this state. - The rate of damages, upon bills of exchange, or orders for the payment of money, drawn or indorsed in Massachusetts, for any sum not less than one hundred dollars, and payable in the state, at any place not less than seventy-five miles distant from the place where the same is drawn or indorsed, when such bills or orders shall not be duly accepted or paid, shall be one per cent in addition to the contents thereof, and interest on said contents. (R. S. 33.)

USURY.

If, in any action brought on any contract, it shall appear that a greater rate of interest has been taken, directly or indirectly, than is allowed by law, the defendant shall recover his full costs, and the plaintiff forfeit three-fold the amount of interest.

The party paying more than legal interest, may recover back three-fold the amount of interest paid. Action must be brought within two years.

In an action where more than legal interest has been taken, the debtor and creditor may both be admitted as witnesses.

A sale of a promissory note at a greater discount than legal interest, does not make the transaction usurious. (20 N. Η. 98.)

Where something besides interest, as such, is allowed on a loan and forbearance of money, it is a question of fact for the jury, whether the contract is fairly and honestly made, or whether it is a cloak for usury. (3 Met. 211.)

CONTRACTS AND AGREEMENTS.

WRITTEN CONTRACTS.

ANY person capable of binding himself by contract, is capable of entering into an agreement.

A person Non-compos cannot enter into an agreement.