text:
    Thomas Cookendorfer, Plaintiff in error, v. Anthony Preston, Defendant in error.
    In an action brought by the indorsee against the indorser of a promissory note, which had been deposited in a-bank for collection, the notary public who made the protest is a competent witness, although he has given bona to the bank for the faithful performance of his duty.
    He is also competent to testify as to his usual practice.
    The cases reported in 9 Wheaton, 582, 11 Wheaton, 430, and 1 Peters, 25, reviewed.
    At the time when these decisions were made, it was the usage in the city of Washington to allow four days of grace upon notes discounted by banks, and also upon notes merely deposited for collection.
    But since then' the usage has been changed as to notes deposited for collection, and been made to conform to the general law merchant, which allows only three days of grace.
    Although evidence is not admissible to show that usage yvas in fact .different from that which it was established to be by judicial decisions, yet it may be shown that it .was subsequently changed.
    This case came up, by writ of error, from the Circuit Court of the United States for- the District of Columbia, in and for the county of Washington.
    The case was this.
    On the 17th of May, 1839, E. T. Arguelles gave the following note.
    $300. Washington, May 17, 1839.
    On the first day . of February next, I promise to pay to Thomas Cookendorfer, or order, three hundred dollars, for value received, negotiable and payable at the Bank of Washington.
    (Signed,) E. T.,ARGUELLES.
    (Indorsed,) Thos. Cookendorfer.
    Anthony Preston.
    This note was deposited in the Bank of Washington, for collection. Not being paid at maturity by the drawer, it was protested under the circumstances and in the manner stated in the bill of exceptions.
    In February, 1842, a suit was brought by Preston, the indorsed, against Cookendorfer, the indorser, which resulted in a verdict and judgment for the plaintiff.
    The following bill of exceptions shows the points of law which were raised and ruled at the trial.

      Memorandum. Before the jurors aforesaid retired from the bar of the court here, the said defendant) by his attorney aforesaid, filed in court here the following bill of exceptions, to wit: —

      Defendant’s Bill of Exceptions.

    Anthony Prestcn v. Thomas Cookendorfer.
    . On the trial of this cause, the handwriting of the maker and indorser of the note in the declaration mentioned was admitted, and the plaintiff, to maintain the issue on his part joined, offered George Sweeny, who was admitted to be a notary public for the county of Washington, District of Columbia, lawfully commissioned and sworn, and by him they offered to prove that he, as such notary, was required by the Bank of Washington (who then held the said note for collection) to demand payment of the note mentioned in the declaration, and the said note was delivered to him by the said ■bank ; and he did thereupon, on the 4th day of February, 1840, present tH said note at the said bank, and did demand payment thereof at the said bank, and he was answered by the proper officer of the bank, “ that there were no funds there for it ” ; that he, the said notary, did, on the next day, to wit, the 5th day of February, 1840, deliver to the defendant a notice in writing, which noti ,e being now produced to the witness by the defendant, is in the words and figures following : —

      Notice of 5 February, 1840.

      Washington, February 5th, 1840.
    Sir : — A note drawn by E. T. Arguelles, dated the 17th May, 1839, for three hundred dollars, payable at 1-4 February, 1840, due, and by you indorsed, and for which you are accountable to the President and Directors of the. Bank of Washington, has been this day protested for non-payment.
    Your obedient servant,
    GEORGE SWEENEY, Notary Public.
    Thos. Cookendorfer, Esq.
    And he did, also, on the said 5th day of February, 1840, extend and record in his notarial register the protest of the said note, which is in the words and figures following : —

      Protest.
    $ 300. Washington, May 17, 1839.
    On the first day of February' next, I promise tó pay to Thomas Cookendorfer, or order, three hundred dollars, for value received, negotiable and payable at the Bank of Washington. .
    (Signed,) E. T. ARGUELLES.
    (Indorsed,) Thos. Cookendorfer,
    Anthony Preston.
    District of Columbia, Washington County, set.

    Be it known, that on the 4th day of February, 1840, I, George Sweeny, notary public, by lawful authority duly commissioned and sworn, dwelling in the county, and District aforesaid, at the request .of the President and Directors of the Bank of Washington, presented at the said bank the original note, whereof the above is a true copy,' and' demanded, there payment of the sum of money in the said note specified, whereunto I was answered, — “ There are no funds here for it.”
    Therefore, I, the said notary, at the request aforesaid, have protested, and by. these presents do solemnly protest, against the drawer and indorser of the said note, and all others whom it doth or may concern, for all costs, exchange, reéxchange, charges, damages, and interests suffered and to be suffered for want of payment thereof.
    In testimony whereof, I have hereunto set my hand and affixed r T my seal notarial, this 5th .day of February, 1840.
    [_seal.J GEORGE SWEENY, Notary Public.

    Protesting, ‡ 1 '75. '
    Recorded in protest-book G. S. No. 3, page
    And the said witness further testified, that he copied the form of the said notice from a form used by Michael Nourse, one of the oldest notaries in the city, and largely employed as notary, and that he made the demand .and gave 'the notice in this case according to • his usual practice, and that his said practice conformed, so far as he knows and beliqves, to the practice of the other notaries in the city of Washington.
    And the plaintiff offered further evidence tending to prove the said practice of said notaries to be according to the statement made by Mr. Sweeny, and that the usual practice was, when a notice was to be sent abroad, to put it into the post-office, and date it on the third or last day of grace ; but when" the notices were to be deliiered- in the city of Washington, a latitude was allowed to the notary, either to deliver the notice on the third or last day of grace, or the day after the last day, and in all cases to date the notice on the day of its delivery, and the usage is to extend the protest on the day on which the notice is given, as in -this case, stating the demand to have been made on the last day of grace, and the protest to be dated the same day on which the notice is dated.
    And the said George Sweeny, on cross-examination, testified that he usually aGted on behalf of the said Bank of Washington, at its request, as the notary in regard to notes and bills in said bank, and that he had given a bond* with security, to said bank, in the penal sum of $ 10,000, for the faithful performance of his duty as notary public in regard to said business, and that the note in controversy had been deposited by plaintiff in said bank for collection.
    And the counsel for the defendant objected to the admissibility and competency of said George Sweeny as a witness, and the court overruled the said objection, and permitted the said Sweeny to be sworn, and to testify as aforesaid to the jury, to which the defendant, by his counsel, excepted, and prayed the court to seal this bill of exceptions, which is done accordingly.
    And the sáid counsel for the defendant further objected to the admissibility and competency of the said testimony upon the subject of the practice and usage spoken of by the witness, but the court overruled the objection, and suffered the said testimony to go to the jury ; whereupon the said counsel excepted.
    And the said counsel for the defendant thereupon moved the court to instruct the jury, that the said evidence was not sufficient, if believed to be true, to show that payment q£ said note had been duly demanded and refused, and that due notice of. such dishonor had been given to defendant so as to bind him.
    But the court refused to give such instruction.
    To each of which rulings of the court,in permitting the evidence as aforesaid to go to the jury, in refusing the instruction as prayed, the defendant, by his counsel, excepts, and prays the court to seal this bill of exceptions, which is accordingly done, this 7th day of April, 1843.
    W. CRANCH. [seal.]
    JAMES S. MORSELL. [sea¿.]
    The cause was argued by Mr. Bledsoe and Mr. Coxe, for the plaintiff in error, and Mr: Bradley, for the defendant in error.

      Mr. Bledsoe, for plaintiff in error,
    made three points ::—
    1. That the court erred in admitting the testimony of the notary public.
    2. That the court erred in refusing the instruction asked for by the defendant’s counsel.
    3. That the declaration is radically and essentially defective.
    1. It may be said, that the objection to- the evidence of the notary public goes to his credibility rather than to his competency* But inasmuch as the bank would he absolved from responsibility if the notary committed an error, and all the liability to the party injured by the fault would devolve upon the notary, it dearly became his interest to exonerate himself from it by proving,that he committed no fault. His interest was strong and direct. Bayley on Bills, 251 ; 20 Johnson, 372 ; same case, 3 Cowen, 562.
    If the plaintiff should fail in recovering from the indorser, on account of the ignorance or neglect of the notary in making a sufficient protest, the latter would become personally liable. His interest is to protect himself by securing a recovery from the indorser.
    2. Supposing the evidence to be admissible, it- is not sufficient.
    A note must be presentedjfor payment on the day that it falls due. When is that ? On the last' day of grace. The time of grace formed a part of the contract by the indorser. 1 Peters, 31.
    But in this case it was presented on the third day of grace. This would have been proper under the general law merchant, if that law prevailed in the District of Columbia. But it does not. It is controlled by a local usage, V/hich is to allow four days of grace. 1 Peters, 34 ; 9 Wheat. 582.
    Such an usage is part of the contract, whether the parties were acquainted with it or not. 11 Wheaton, 430.

      A presentment too soon is a nullity. Bayley on Bills, 236.
    No proof was offered in this case' of the four days usage, but as it had been once proved and established, we were not bound to prove it again. It then became a part of the law. 1 Peters’s C. C. R. 230 ; 2 Starkie (7thLond. ed.), 360.
    In 1 Peters, 34, there was no proof of this usage, but the court relied upon its having been proved before. There was proof of another usage, but none of that now in question.
    It is apprehended that the counsel on the other side mean to make a distinction between notes discounted by banks and those left for collection ; and to contend that the usage of four days grace applies only to notes discounted by banks. But this distinction is not recognized in the case in 1 Peters, 33, 34.
    The usage being once established and recognized by law, the court below erred in admitting evidence to contradict it. 9 Law Lib. 40; 2 Burr. 1216, 1220, 1222, 1224, 1228 ; 1 Call, 159 ; 2 Starkie, 360.
    It is an usage in other places to allow four days grace, and this is recognized as valid in the books. Chitty on Bills, 407, note ; Bayley on Bills, 235, note, speaking of this one. _
    _ It is- contrary to the policy of the law to leave these questions open for the jury, Chitty on Bills, 402.
    The law merchant is built upon usage taken m connection with • the principles of justice, not being found in any statutes. Evidence to unsettle it ought not to be received. 1 Dall. 265 ; 3 Wash. C. C. R. 149 ; 5 Binney, 207 ; 6. Binney, 420, 450; 1 Hall, 619.
    3. The evidence does not support the declaration, which says that the note was presented on the third day of grace. The notice does not state the day of presentation, saying only that it was protested on the 5th of February . The note tjras due either on the 4 th or 5th. We Say it was not due until the 5th. If so, it was premature to present it on the 4th, the day on which the counsel on the other side say it was due.

      Mr. Bradley, for defendant in error.
    As to the first point. A notary is not an officer of the law to demand payment of notes, out is merely an agent of the bank. It has been said, that the bank would not be responsible for an error of the notary, and the case in 3 Cowen cited to sustain it. But in that case the bank was held responsible.
    The bank is the agent of the deposition, and the notary is the agent of the bank. In an action by the holder against the indorser, the competency of the notary, cannot be affected, If the action were against die bank, the conclusion might be different. The competency of a notary as a witness is discussed in 2 Bailey’s S. C. Rep, 183.
    An agent is generally a competent witness as to matters within his.agency. 1 Bingham, 368 ;.6 Lea. R. 29 ; 1 N. H. Rep. 192 ; 5 Martin, N. S., 310. See also 15 Wend. 314.
    2; The notary not only proved his own acts, but the general usage and custom of allowing different days of grace upon notes discounted by a bank and those merely deposited for collection. It is admitted, that if courts have, by their decisions, settled-and established what the usage is, it becomes as binding as statute law. The general usage in the United States is to allow only three days of grace, and the special custom of this District -is to allow four, days only as to those notes discounted by a bank. 9 Wheat. 582, 583 ; Story on Prom. Notes, 242, note.
    In the case of Bank of Washington v. Triplett and Neale, 1 Peters, 33, 34, the report of the case does not show that any evidence was taken to establish usage, but the original record shows that it was so. (Here Mr. Bradley produced the original record.) Usage depends on the practice of banks. But this may have changed between 1824 and 1840, and if so, can we not show it ? Is a usage, once recognized by a court as existing, to last for ever without any change ? If the people in the District should conform to the custom in other parts of the United States, shalLwe be precluded from showing it by evidence ? It is said that the evidénce given was not sufficient. But the existence of usage is a fact of which the jury are to judge, and the court was right in leaving it to them.
    3. The declaration says that demand was made on the third day of grace. But the fact of notice on that day is immaterial; it always says on the day and year aforesaid.

      Mr. Coxe, for plaintiff in error, in reply.
    As to the competency of the witness. The notary was a public officer, and the bank could not be held responsible for his mistakes. It is the duty of the bank to collect notes which ares deposited for collection, and for this purpose it must employ competent agents. It is only responsible in case it employs incompetent ones. But where it uses due diligence according to the law of bailments, it is not liable for their errors. In the case in 20 Johnson, the bank was held responsible because it did not employ a public officer, but an agent of its own. In the present case, the bank would be blameless, but the notary is responsible to-the holder of the note, if, from any negligence or ignorance on the part of the notary, the holder were to lose his remedy against the indorser.' Besides, he has given a bond to the bank, in a penalty of $ 10,000, for the faithful performance of his duty. If, a person, standing in such a situation, is ever admitted as a witness, it is only from necessity, and then he is only allowed to prove his own acts. But here he not only proves what he did, hut goes on to testify as to the regularity and correctness of his actions, and that, too, by referring to other persons. For example, he says that he “ copied from an old notary.” The old notary himself could have proved this much better. The usage is to extend the protest on the last day of grace. The notice here says, “ this day protested,” &c., that is, on the 5th ; but it does not say whether the demand was made on the 3d or 4th day.
    Was any evidence admissible in this case to show usage ? There have been three decisions of this court upon the subject. In the first, 9 Wheat. 582, the note happened to be discounted at bank. But can a contract be changed without the party’s being aware of it, merely by the circumstance that the note has been subsequently discounted at bank ?
    In 11 Wheat. 431, stress was laid upon the note’s being made for the purpose of being negotiated.
    In Bank of Washington v. Triplett and Neale, 1 Peters, both the above cases came up again for review, and the original record has been referred to by Mr. Bradley, to show that evidence was given upon the subject of usage. It was so. That evidence says, that it was the usage to demand payment of notes which were deposited for collection on the day. after the third day of grace.

      {Mr. Bradley referred to the record, and said that the original practice was changed by the banks, and demand made on the third day.)
    It,is contended by the other side, that there is a difference between discounted notes and those deposited for collection. But there is no allusion to this in the testimony, and no such distinction made in any part of the record. The same usage appears to be applicable to all.
   Mr. Justice McLEAN

delivered the opinion of the court. ■

. The questions in this case arise on the rulings of the court, to which, at the trial, exceptions were taken.

Preston, the defendant, as the indorsee of a promissory note, brought an action against the plaintiff in error, the indorser. The signatures of the maker and indorser- were admitted. These grounds of error are assigned:—

1. That the court erred in admitting the testimony of the notary public.

2. ' In refusing the instructions asked by the defendant’s counsel.

3. The declaration is defective.

George Sweeny, the notary who protested the note, testified that it was delivered to him by the Bank of Washington, who held it for collection', to demand payment, and that he did thereupon, the 4th of February, 1840, present the note to the bank, and demanded payment, but was informed by the proper officer that there . were no funds to pay it, on which he protested the same for nonpayment ; and On the next day, the 5th of February, he delivered to Cookendorfer, the plaintiff in error, the following notice, in . writing: —

“ Washington, 1ebruary 5th, 1840.
a Sir, — A note drawn by E. T. Arguelles, dated 17th May, 1839, for three hundred dollars, payable 1-4 February, 1840, due, and by you indorsed, and for which you are accountable to the president and directors of the Bank of Washington, has been this day protested for non-payment.”

And the witness stated, “ that he made the demand and gave the notice according to his usual practice,” and that said practice conformed, as far as he knows and believes, to-the practice of the other notaries in the city of Washington.”

And other evidence was given, conducing to show that the usual practice in such cases was, “ when a notice was to be sent abroad, to put it into the post-office, and date it on the third or last day of grace ; but when the notice was to be delivered in the city of Washington, a latitude was allowed to the notary either to deliver the notice on the third or last day of grace, or the day after the last day, and in all cases to date the notice on the day of its delivery; and the usage is to extend the protest on the day on which the notice is given, as in this .case, stating the demand to rave been made on the last day of grace, and the. protest to be dated the same day on which the notice is dated.”

It-is insisted' that the notary, by reason of his interest in this suit, is an incompetent witness.

In the casé of Smedes v. Utica Bank, 20 Johns. R. 372, it was held that a bank which receives a promissory note for collection, to charge the indorser, by a.regular notice, is liable for neglect-; but this is not the case where the bank delivers the note to a notary, who is a sworn public officer, and whose! duty it is to make the demand and give the notice; The same doctrine is laid down in 3 Cowen, 662. From this it is argued that the notary is liable directly to the holder of the paper for neglect, as a public officer, and not to the bank, as its private agent. That in the latter case he would not be liable to the holder of the paper, but might be called on to indemnify the. bank which'had suffered on account of his laches.

A notary is a competent witness on the same ground that other agents are admissible. They are always, responsible to their principals for gross negligence, and yet, from the necessity of the case, they are competent witnesses to prove what they have done in the name of their principals.

It appears that the witness, who generally acted as notary for the Bank of Washington, had given a bond, with security in the sum of ten thousand dollars, for the faithful performance of his duty ás notary public, in the business of the bank committed to him. But this, it would seem, does not render him incompetent. .“ The cashier or teller of a bank is a competent witness for the bank, to charge the defendant on a promissory note, or for money lent or overpaid, or obtained from the officer without the security which he should have, received ; and even though the officer has given bond to the bank for his official conduct.” Greenleaf’s Ev. 485 ; The Franklin Bank v. Freeman, 16 Pick. 535 ; United States Bank v. Stearns, 15 Wendell, 314.

It is further insisted, that if the notary wag competent to state his own acts, he could not prove the usage under which he acted. He stated, that in making the protest and giving notice he pursued “his usua[.practice,” “ and, so far as he knew, the practice of the other notaries in the city.” . Now it would be an exceedingly technical rule which would permit a notary to say what he had done in a particular case, but prohibit him from stating that he acted in such case according to his usual practice. And this was all the witness did say ; for although he spoke of his belief as to the practice of other notaries in the city, he does not .state that he had a knowledge of their practice.

The instruction prayed by the defendant’s counsel, and the refusal of which is the second ground of error assigned, was,.“ that ' the said evidence was not sufficient, if believed to be true, to show that payment of said note had been duly demanded and refused, and that due notice of such dishonor had been given to defendant, so as to bind him.”

In the case of Renner v. The Bank of Columbia, 9 Wheat. 582, a suit was brought against the irj^orser of a note which had been negotiated in.the Bank of Columbia. Payment was demanded, and the'note protested on the fourth day after that mentioned in the note as the day on which it became payable. This was proved to be the usage of the bank, and this court held the demand was made at the proper'time. In Mills ®. The Bank of the United States, II Wheat.. 430, this court held, that “when a note is made payable or negotiable at a bank, whose invariable usage it is to demand payment and give notice on the fourth day of grace, the parties 'are bound, by that usage, whether they have a personal knowledge of it or not.”

In the Bank of Washington ®. Triplett and Neale, 1 Peters, 25, this court sanction the usage to make the demand of payment of a note which was- left in the bank for collection on the day after the last day of grace, placing such notes, in this respect, on the same footing as notes discounted by the bank. And that such was the usage in 1817, . when payment on the note or bill in question was demanded, was proved in that case. . But it was also proyed, as appears from the record, that the usage was changed in 1818 by all the banks of Washington and Georgetown, “so as to conform to the general commercial usage of demanding payment on the last day-of grace.” This referred to notes or bills sent to the banks for, collection, and of course embraces all notes not negotiated in bank.

Where a usage is sanctioned by judicial decisions, it becomes the law of the place, and no further proof is necessary to establish it; and it is said, that no evidence is admissible to controvert the fact, as laid down by the court. Edie v. East India Co., 2 Burr. 1221.

Now if the usage, as sanctioned in the cases above cited, governs this case, it is clear that such diligence has not been used as to charge the indorser. For, under that, usage, the demand should have been made on the day after the third day of grace, when it was in fact made on the third day of grace.

This objection is met by the defendant in error by the proof of the usage as' stated ; which he insists governs all notes not discounted by the banks of the District. .. The note in question was riot discounted by the Bank of Washington, it being merely left there for collection. But it is insisted that this usage cannot be shown to overthrow that which has been sanctioned by judicial decisions. A local usage may be changed in the same mode by which it was established. But parol evidence is not admissible to show that the usage was different, at the timet, from what the courts have solemnly adjudged it to be. The law merchant is founded upon custom, and every modification of it by local usage shows that, like other laws, it may be changed.

The usage proved in this case$ except in Bank of Washington v. Triplett and Neale, and that is explained by the evidence cited, does not conflict with that decided by this'court, if the latter be limited to notes discounted by the banks, and the former applies to all other notes payable in the District. In other words, that the law merchant should be modified by the usage only as to demand and notice on notes discounted by the banks. And it would seem, from the decisions above cited, the usage to demand payment the day after the third day of grace had its origin with the banks, and has not been . extended, since 1818, to paper not discounted by them. On all other paper, a demand is made on the third -day of grace, and the “ usage is to extend the protest on the day on which the notice is given, stating the demand to have been made on the last day of grace, and the protest to be dated the same day on which the notice is dated.” Now a demand and protest on the last day of grace, and a notice on the following day, come strictly within the law merchant. And this was” the diligence used in the present case, except the formal date of the protest on the day of the notice. No confusion can, therefore, arise from this'general commercial usage, as it.conforms to the established law. No inconvenience has arisen, it is supposed, from the bank usage in the District, which has been so long and so firmly established.

No defects in the declaration are perceived, and none have been pointed out to us, which are not cured by the verdict.

Upon the whole, we affirm the judgment of the Circuit Court, with costs.


source: Caselaw Access Project

author: Mr. Justice WOODBURY

license: Public Domain

text:
    Alexander Rankin, Cunningham Smith, George C. C. Thurger, and John McCall, Plaintiffs in error, v. Jesse Hoyt.
    Under the act of 1832, the collector had power to direct wool to be appraised, for the purpose of ascertaining whether or not it was entitled to be imported free from duty; the exemption depending upon its value not exceeding eight cents per pound at the place of exportation.
    Although it was necessary for the collector to request the appraisers to act, and no such request appears in the record, yet the legal presumption is^ that the collector and appraisers did their duty, he requesting their action' and they complying.
    And, the collector’s subsequent adoption of .the proceedings of the appraisers is tantamount to having requested them. * -
    It was the duty of the collector to be guided by such an appraisement, and a subsequent verdict of a jury, finding that the value of the wool was under eight cents per pound, cannot be considered as rendering his acts illegal.
    The importer had a right tofappeal to another board of appraisers, differently constituted, and if he did not cnoose to resort to them, he cannot, with much grace, afterwards complain that an over-estimate existed.
    This case came up, by writ of error, from the Circuit Court of the United States for the Southern District of New York.
    It was an action brought by the plaintiffs in error, transacting business as copartners, in the city of New York, under the name of Smith, Thurger, & Co., for the return of duties which they alleged to have- been illegally exacted, upon several importations of wool, by Hoyt, the collector of New York.
    The acts of Congress which bear upon the case are the following.
    By the act of the 14th of July, 1832, entitled “ An act to alter and amend the several acts imposing duties on imports,” by the first clause of the second section (4 Lit. & Brown’s ed. 583), it is enacted, ’— “ That wool ■ unmanufactured, the value whereof, at the place of exportation, shall not exceed eight cents per pound, shall be imported free of duty ;■ and if any wool so imported shall be fine wool, mixed with dirt or other material, and thus reduced in value to eight cents per pound or under, the appraisers shall appraise said wool at such price as in their opinion it would have cost had it not been so mixed, and a duty thereon shall be charged in conformity with such' appraisal; on wool unmanufactured, the value whereof, at 'the place of exportátion, shall exceed eight cents, shall be levied four cents per pound, and forty per centum ad salorem.”
    By the seventh section of the same act, it is enacted, — “ That in all cases where the duty which now is, or hereafter may be, imposed on any goods, wares, or merchandise imported into the United Spates shall, bylaw, be regulated by, or be directed to be estimated or levied upon, the value of the square yard, or of any other quantity or parcel thereof; and in all cases where there is or shall be imposed any ad valorem rate of duty on any goods, wares, or merchandise imported into the United States, it shall be the duty of the collector within whose district the..same shall be imported or entered to cause the actual value thereof, at the time purchased, and place from which the same shall have been imported into the United States, to be appraised, estimated, and ascertained, and the number of such yards, parcels, or-quantides, and such-actual value of every of them as the case may require ; and it shall, in every such case, be the duty of the appraisers of the United States, and every of them, and every other person who shall act as such appraiser,- by all the reasonable ways or means in his or their power, to ascertain, estimate, and appraise the true and actual value, any■ invoice or affidavit thereto to the contrary notwithstanding, of the said- goods, wares, or merchandise, at the time purehásed, and place from whence the same shall have been imported into the United States, and the number of such yards, parcels, or quantities, and such actual value of them as the case may require ; and all such goods, wares, and merchandise, being manufactures of wool, or whereof wool shall be a component part, which shall be imported into the United States in an unfinished condition, shall,- in every such appraisal,' be taken, deemed, and estimated by the said appraisers, ¿nd every of them, and every person who shall act as such' appraiser, to have.been, at the time purchased, and place from whence the' same were imported into the United States, as of great actual value as if the same had been entirely finished : Provided, that, in all cases-where any goods, wares, or merchandise subject to ad valorem duty, or whereon the duty is or shall be by law regulated by, or be directed to be estimated or levied upon,the value of the square yard, or any other quantity or parcel thereof, shall have been imported into the United States from a country other than that jn which the same were manufactured or produced, the appraisers shall value the same at the current' value thereof, at the'time of purchase, before such- last exportation to- the United States, in the country where the same' may have been originally manufactured or produced.”
    And by the eighth section it is further enacted, — “ That it shall be lawfuhfor the appraisers to call before them, and examine upon oath, any owner, importer, consignee, or other person, touching any matter or thing which they may deem material in ascertaining the true value of any merchandise imported, and to require theproduction on oath to the collector,, or to any permanent appraiser, of any letters, accounts, or invoices, in his possession, relating to the ¿ame ; for which purpose they are hereby authorized to administer oaths ; and if any person so called shall fail to attend, or shall decline to answer, or to produce such papers when so required, he shall forfeit and pay to the United-States fifty dollars ; and if such person be the owner, importer, or consignee, the appraisement which the said appraisers may make of.the goods, wares, or merchandise shall be final and conclusive, any act of Congress to the contrary notwithstanding ; and any person who shall swear falsely-on such examination shall be deemed, guilty of perjury, and if he be the owner, importer, or consignee, the merchandise shall be forfeited.”
    - By the third section of the act of the 28th of May, 1830 (4 Lit. & Brown’s ed. 409), entitled “ An act for the more effectual collection of tne impost duties,” it is enacted, — “ That if the owner, importer, or consignee, or agent' for any goods appraised shall consider any appraisement made by the appraisers, or other persons designated, too high, he may apply to the collector, in writing, stating the reasons -for his opinion, and having made oath that the said appraisement is higher than the actual cost and proper charges on which duty is to be charged, and also that he verily believes it is higher ■ than the current value of the said goods, including said charges at the place of exportation, the collector shall designate one merchant skilled in the value of such goods, and the owner, importer, consignee, or agent may designate another, both of whom shall be citizens of the.. United States) who, if. they cannot agree in an appraisement, may designate an umpire, who shall also be a citizen of the United States, and when they, or a majority of them, shall have agreed, they shall report the result to the collector, and if their appraisements shall not agree with that of the United States’ appraisers, the collector shall decide between them.”
    This last enactment was not repealed by the act of 1832, and it was under this last act, as modified by the compromise act of 1833 (4 Lit. & Brown’s ed. 629), that the cause came on to be tried at the November term, 1842.
    The plaintiffs in error made three several importations of wool in the yetfr 1838, viz.:
    . April, by the Sarah Sheafe, 25 bales.
    May, “ “ Josephine, 21 iC
    November, “ “ Renown, 19 “
    The whole of the duties paid upon these several importations were claimed in this one action.
    The jury found a special verdict of the following facts, viz.: —> That the plaintiffs in error were copartners ; that Hoyt was collector of the customs ; that the three importations above mentioned were made and the original invoices produced ; that in each invoice the value of the wool was stated to be seven and one half cents per pound ; that the wool was all unmanufactured ; and then proceeded as follows.
    . ‘ ‘ And the jurors aforesaid, upon their oaths aforesaid, further find, that upon the importation of the said three several invoices of wool as aforesaid, and upon the several entries thereof, the said wool was examined and appraised by the appraisérs of the United States for the collection district of New York, and that the said appraisers' did, upon such examination, appraise the said wool, and each and every part and parcel thereof, as of the value, at the places of exportation thereof, of nine cents per pound; which appraisements were, by .said appraisers, reported to the collector, and from which said appraisements, or either of them, no appeal was made by the said plaintiffs.
    “ And the jurors aforesaid, upon their oath aforesaid, further say, that the said appraisers found the said several parcels of wool to be unrnixed and of the same quality.
    “ And.the jurors aforesaid, upon their oath aforesaid, further find, that the said collector claimed and insisted that the said wool was subject to the payment of duties to the United States according to the valuation of the appraisers, so. reported to him, and refused to deliver the said wool to the plaintiffs except upon payment by them of the duties claimed by the defendant to b£ due thereon as aforesaid.”
    The special verdict then went on to find that the plaintiffs in error insisted that the wool was free from and not subject to the payment of any duties to the United States, and protested against the right of Hoyt to require payment of any duties ; that they paid, under this protest and a notice that they would bring an action to-recover it back, the sum of $ 1,909-93, and that the interest thereon, from the time of payment until the 29th of November, 1842, amounted to $577-22, the aggregate of the principal and interest being $2,487-15 ; that the duties charged by Hoyt were calculated and charged upon the value of the wool, as appraised by the appraisers, and that the wool mentioned in the three several invoices, and each and every part and parcel thereof, at the place of exportation, was of the value of seven and one half cents per pound and no more.
    Upon this special verdict, the court, on the 23d of December, 1843, ordered a judgment to be entered in favor of Hoyt, the defendant, and a writ of error brought the case "up to this court.
    The cause was argued by Mr. Dudley Selden for the plaintiffs in error, and Mr. Mason (Attorney-General), for the defendant in error.

      Mr. Selden made the following points.
    First. Under the facts found by the special verdict, the plaintiffs were entitled to judgment.
    Second. The power vested in the officers of the revenue to appraise the value of goods subject to duty does not authorize them to decide whether goods are or are not subject to duty.
    Third. If the act of July 14th, 1832, “to amend the several acts imposing duties on imports,” has extended the power, under certain circumstances, in regard to the article of unmanufactured wool, the finding in this case shows that those circumstances did not exist, and therefore the appraisement is inoperative.
    Fourth.' The power given to the appraisers by section second of that act, in relation to unmanufactured wool invoiced at eight cents per pound or less, is confined to the inquiry whether the value thereof has been diminished by being mixed with other material. The seventh section of the act applies alone to goods subject to duty.
    Fifth. If the appraisers acted without authority, an appeal from their decision was unnecessary.
   Mr. Justice WOODBURY

delivered the opinion of the court.

The right of the plaintiffs to recover in this case, and consequently to have areversal of the judgment rendered in the Circuit Court, must depend on the legality of the course pursued by the defendant.

No question has been made by counsel, that an action in this particular form cannot be maintained against a collector of the customs,-if the course pursued by him was illegal, or that the protest against paying the duties should have been in' writing ; points which have arisen in similar controversies'and led to special legislalion by Congress, but not being made here, it is not necessary now to consider them. See on them Elliott v. Swartwout, 10 Peters, 138, 158 ; Bond v. Hoyt, 13 Peters, 267 ; Carey v. Curtis, 3 Howard, 236 ; Swartwout v. Gihon, 3 Howard, 110; Act of February 26th, 1845.

The illegality imputed to the proceedings of the collector is supposed to have consisted in this ; that he possessed no power, in cases of this kind, to call on the appraisers to estimate the value of the wool; and if he did possess it, that they do not appear to have acted here by his request. These objections, if well.sustained, are material, because, by the appraisal, the true value of the wool was.reported to be nine cents per pound, and then-, by the act of July 14th, 1832, a duty on it was “ levied of four cents per pound, and forty per centum ad valorem.” (4 Lit. & Brown’s.ed.-583.) Whereas if the appraisal was unauthorized, and the invoice should have been the only guide, the value of the wool was but seven and a half cents per pound, and by the same act it ought then to have been allowed to {C be imported free.”

• The legal power of the collector to call on, the appraisers to estimate the value of this wool rests on the construction which ought to be given to the second and seventh sections of the. act aforesaid, both of which are extracted at length in the statement of this case. The plaintiffs contend, that the seventh section,-authorizing an appraisal where the duty may be regulated by the value, or imposed at a rate ad valorem, is not .applicable to any importations which, like these, if looking to the invoice alone, are not dutiable; and that the second section, regulating the appraisement of wool “ mixed with dirt or other material,” is the only one applicable to. wool which, like this, was valued so low in- the invoice as to be free ; -but did not in this case authorize the action of the appraisers in respect to these particular importations, as these; by the verdict of the jury, afterwards, were found not to have been so mixed.

In the first place, we so far coincide with the views of the plaintiffs, as to be satisfied that the second- section does not justify the course pursued by the defendant in the present case. But we dissent from the argument, that it is the only section applicable to importations like these, and hold that the seventh section, though open to different constructions on this subject, is plainly susceptible of one which embraces it; and that the spirit of the section, as well as of the whole system of appraisement under the revenue laws, seems not only to justify, but require, the application of its provisions to importations like those now under consideration. It ought, then, to be so construed ; since this court has recently decided, that acts imposing duties are not, as has often been done, to be construed strictly against the government, like penal laws, but-so as £e most effectually to accomplish the intention of the legislature in passing them.” Taylor et al. v. United States, 3 Howard, 210.

By the words of this last section, so far as material to the present inquiry, it is provided, that if the duly “ imposed on any goods, wares, or merchandise ” “ shall by law be regulated by, or be directed to be estimated or levied upon, the value of the square yard, or of any other quantity or parcel thereof, and in all cases where there is or shall be imposed any ad valorem rate of duty,” &c., u it shall be the duty of the collector ” “ to cause the actual value thereof, at the time purchased,” &c., “ to be appraised, estimated, and ascertained,” &c., by appraisers.

Under the act of May 19th, 1828, a duty partly specific and partly ad valorem had been imposed on all wool imported from abroad. No doubt can exist, that the power to have appraised the value of any wool, imported under that act, had it remained unaltered in 1838, would have existed in the collector, because a duty in all cases was imposed and was in some degree regulated by the value, though it was not wholly an ad valorem rate of duty. But by the act of July 14th, 1832, an amendment was made in the rate on one description of wool, so as to" admit it free, if 'its value did not exceed eight cents per pound, and the argument for the plaintiff is. that as such wool no longer paid an ad valorem duty, the collector would no longer call on the appraisers , to estimate its value. It is to be noticed, however, that this exemption did not make wool, as an article, cease to be dutiable. Nor did it become, after this change, any less important, in regulating the duty which was proper to be imposed, on any wool, to ascertain the true value of it in all cases, so as to levy thereon four cents per pound and forty per cent, ad valorem, if the value turn out to be above eight cents per pound ; and nothing if at or below eight cents. (See the first section, 4 Lit. & Brown’s ed. 583.)

This act may then be considered to authorize the use of appraisers not merely when an article imported pays an ad valorem rate of duty, but whenever the duty is regulated by the value ; or in other words, as we construe the. provision, whenever a duty may exist or cease according to the value, as well as whenever it may increase or diminish, according to it. The language of the seventh section is broad enough, under this view, to justify the course that was adopted by the collector in the present case. But, if we look to the spirit of that section, and of the whole act of which it forms a part, in respect to the policy both of employing appraisers and discriminating in the duties imposed on wool, any remaining doubt as to the propriety of considering this case as coming within the seventh section must be removed. If the appraisers could not be called on to estimate the true value of the wool, when imported at low prices, but the' value in the invoice was alone to guide, the revenue on all wool was manifestly liabla to be lost*, or the treasury greatly defrauded, by the article being put in the invoice at a price below the actual- Value, in order to introduce it free. Any incidental protection, contemplated from the duty, to the growth of finer and more valuable wools in this country, would also be thus exposed to total defeat by the importation of this last- kind at a valuation so low as to escape any duty whatever.

The utility of appraisers in such a case is even more apparent and important than in most others, because the value of wool is uncertain, fluctuating, and liable to be concealed Jjjcjnany ingenious devices, — lowering the prices in the invoice, ^and others putting different qualities of wool in the same bale, or bringing it in mixed with dirt and burrs.. It is on this last account, and not, as argued for the plaintiffs!, Because it is the only case in which the appraisers were authorized to act in respect to wool, that the second section requires them, in estimating its value, if mixed, to appraise it as high as if not mixed. In like manner, the act of 1832, as well as 1828, requires wool imported on the skin to be taxed according to its “ weight'and value ” as in other cases. And, instead of either of these provisions appearing to exclude the use of appraisers generally for ascertaining the true value of low-priced wool, they both' seem to contemplate or imply their employment in sucji imports, knowing that the duty was to be affected or regulated by the value, and proceeding therefore merely to lay down specific rules for ascertaining it in cases where the wool is found to be mixed or on the skin.

It is not a little confirmatory of this view,, that the act of August 30th, 1842, which imposes some duty on all kinds of wool, and thus confessedly authorizes an appraisement in every importation, repeats substantially the provisions in former acts for guiding the appraisers in estimating the value of mixed wool; thus showing with absolute certainty that such provisions do not in other acts exclude — or can probably in the present case be meant to exclude— the employment of appraisers in ascertaining the true value of wool, however low it is put in the invoice, and however unmixed it may be with other materials.

The only adjudged case which has been alluded to by the plaintiffs as supporting their views is that of Curtis v. Martin et al., 3 Howard, 106.

There the articlé in question, being gunny-bags, had not, at the time the duty was levied, been specified in the tariff laws, as subject to any duty whatever, in any form or value. The effort by the collector was to impose a duty on it under another name, such as cotton bagging. But in the. present case, the article in dispute had been made by Congress dutiable'in express terms, and no kinds of it were exempt unless of a particular value ; and the object and the effect of the appraisement were not, as has been contended, to make the article of wool dutiable, when it was not before dutiable by law, but to see whether a particular import of the article was actually of so small value per pound as by law to be entitled to exemption from duty.

The other leading objection urged in this case is more easily disposed of. In saying that the appraisers had no right to act without the previous request of the collector, and that no such request appears in-the evidence, nothing is stated beyond the truth. But, in the absence of testimony to the contrary, the legal presumption is, that the appraisers-and collector both-did their duty, he requesting their action, as by law he might, and they complying.

Beside this, it is conceded that he adopted their doings, and such a subsequent ratification of them is undoubtedly tantamount to having requested them. Am incidental exception taken in the argument is, that as the jury have found the value in the invoice to be correct, the collector could not be justified in following the higher valuation of the appraisers.- But an appraisal, made in a proper case, must be followed, or the action of the appraisers would be nugatory, and their appointment and expenses become unnecessary. Tappan v. The United States, 2 Mason’s R. 404. The propriety of following it cannot in such case be impaired by the subsequent verdict of the jury differing from it in amount, as the verdict did not exist to guide the collector when the duty was levied, but the appraisal did, and must justify him, or not only the whole system of appraisement would become worthless, but a door be opened to a new and numerous class of actions against collectors, entirely destitute of equity. We say destitute of it, because, in case the importer is dissatisfied with the valuation made by the appraisers, he is allowed, by the act of Congress of May 28th, 1830, before paying the duty, an appeal and further hearing before another tribunal, constituted in part by persons of his own selection. (See second section, 4 Lit. & Brown’s ed. 409.)

. These-persons have been aptly denominated a species of legislative referees ” (2 Mason, 406) ; and if the importer does not choose to resort to them, he cannot with much grace complain afterwards that any over-estimate existed.

, The judgment below is affirmed.


author: Mr. Justice WOODBURY Mr. Justice McLEAN.

text:
    Benjamin D. Harris, Plaintiff in error, v. James Robinson, Defendant in error.
    In the case of a protested note, it is not necessary for the holder himself to give notice to the indorser, but a notary or any other agent may do it.
    The object of the rule which requires the notice to come from the holder is to enable him, as the only proper party, either to fix or waive the liability of indorsers. Where a note vías handed to a notary for protest by a bank, and it did, not appear whether the bank or the last indorser was the real holder of the note, and the notary made inquiries from the cashier and others not unlikely to know, respecting the resjdence of the prior indorsers, and then sent notices according to the information thus received, it was sufficient to bind such prior indorsers.
    If the last indorser was the holder, the cashier of the bank was his agent for collecting the note, and the evidence showed that in fact the last indorser knew nothing more than the cashier.
    The cases on this subject examined.
    The facts being found by a jury, the question, whether or not due diligence was used, is one of law for the court.
    If due diligence is used in sending the notice to. the indorser, it is immaterial whether it is received or not.
    This case was brought up, by writ of error, from the District Court of the United States for the Northern District of Alabama.
    It was an action brorght by the indorsee (Robinson) against an indorser (Harris) of a ? romissory note.
    Robinson, .the plaintiff below, was a citizen of the State of Tennessee, and Harris a citizen of Alabama.
    The note was as follows.
    V $ 1,600 5°5. Eight months after date, wé promise to pay Matth. Burks, or order, sixteen hundred dollars ; payable and negotiable at the Planters’ Bank of the State of Tennessee, at Nashville, for value received. Dated ’ in Lincoln county, Tennessee, 20th November, 1837.
    (Signed,) ' JOHN P. BURKS & Co.”
    (Indorsed,) “ Matth. Burks, Benj’n D. Harris, J. Robinson.”
    ■ The note not being paid at maturity, Robinson, in September^ 1839, brought his action against Harris, in the District Court of the United States for the Northern District of Alabama, which, after several interlocutory proceedings, came on for trial at May term, 1843..
    The jury, under the instructions of the court, found a verdict for the plaintiff in the sum of two thousand and sixty-two dollars and Sixty-six cents. It is impossible to give a1 clear idea of the instructions of the court without reciting all the circumstances of the case to which the iiistructions referred. They are all stated in the bill of exceptions, which is as follows.

      The Bill of Exceptions.

    In the District Court of the United States of America, for the Northern District of Alabama.
    In this case, the plaintiff brought his, action' against defendant as indorser of a promissory note, and introduced the deposition of Alpha Kingsley, which is as follows.

      “ Deposition of A. Kingsley.

    “ The said Alpha-Kingsley, being about the age of sixty years, and being by me first carefully examined, cautioned, and sworn to testify the truth, the whole truth, and nothing else but the truth, makes oath-, deposeth, and saith : that he resides in the city of Nashville, in the State of Tennessee, and more than one hundred miles from Huntsville, aforesaid, the place of-trial of this cause ; furthermore he saith, I am now a notary public of. Davidson county, in the State of Tennessee, and was such on the 23d day of July, 1838, duly qualified according to' the laws of said State ; that on that day there came into my hands, as notary public, a promissory note, a true copy of which is herewith inclosed, marked A, and is ' made a part of this my deposition ; that at or about three o’clock of the said 23d day of July, 1838, I presented said promissory note at the counter of the Planters’ Bank of Tennessee, at Nashville, where the same was payable, and demanded payment thereof, and was answered by the teller of said bank that it would not be paid ; whereupon, as notary public aforesaid, I did protest said promissory note, as well the drawers as the indorsers thereof, and duly recorded the same in my notarial book, and on the evening of the said 23d day of July, 1838, I deposited in the post-office at Nashville? Tennessee, in time to go by the first mail leaving' Nashville after said demand and- protest, notices of said demand and protest, directed1 to John P. Burks & Co., Matth. Burks, and Benjamin D. Harris, Madison county, Alabama, to each separately ; a copy of the notice so sent to Benjamin D. Harris is herer withio be inclosed, marked B, and is made a part of this my deposition. I was not, when these notices were forwarded, acquainted with the residence of any of the parties thus protested, or their nearest post-office ; and I made inquiry of those I thought were-[not] unlikely to know, where would be the.proper place to which to direct notices to them ; I applied,. I recollect, to Nicholas Hob-son, cashier of the Planters’ Bank, who informed me they.lived in Madison county,. Alabama, but could not say where their nearest post-office was ; I also applied to Joseph Estell, who had resided in Madison county, and also had a very general acquaintance there ; he likewise informed me, that they all lived in Madison county, but did not know their nearest post-office. I knew of no other source from whence to derive information as to where to direct, and accordingly directed said notices ‘ Madison county, Alabama,’knowing that,, from the general rules of the. post-office department, they would be sent to Huntsville, the county seat.
    (Signed,) ALPHA KINGSLEY.”

      Copy of Note.

    (Copy of the note, referred to in Alpha Kingsley’s deposition, as marked A.)
    ££ $ 1,600 $. Eight months after date, we promise to pay Matth. Burks, or order, sixteen hundred dollars ; payable and negotiable at the Planters’ Bank of the State of Tennessee, at Nashville, for value received. Dated in Lincoln county, Tennessée," 20th November, 1837.
    (Signed,) -JOHN P. BURKS & .Co.”
    (Indorsed,) “ Matth. Burks, Benj’n D. Harris, J. Robinson.”
    (Copy of the notice, made part of Alpha Kingsley’s deposition. — B.)
    cc Nashville, 23d July, 1838.
    “ Mr. Benjamin D. Harris :
    ££ Please to take notice, that a note drawn by John P. Burks & Co., payable at the Planters’ Bank of Tennessee, at Nashville,, eight months after date, to the order of Matt. Burks, by him, you, and J. Robinson indorsed, for the sum of sixteen hundred dollars, dated the 20th day .of November, 1837, was this day protested by me for non-payment, and the holder looks to you for payment as indorser thereof.
    “ Respectfully, your obedient seryant.'
    “ ALPHA KINGSLEY, Notary Public.”
    And defendant introduced the deposition of N. Hobson, which is as follows.
    ££ Deposition of N. Hobson.

    ££ Interrogatories to Nicholas Hobson, on the part of the defendant.
    “1. Were you acquainted with" the defendant, Benjamin D.. Harris, in the years 1837 and 1838 ?
    “2. Do you know whether said Benjamin D. Harris resided in Tennessee or Alabama, in 1837 and 1838 ?

      “ 3. Have you any recollection of ever telling Alpha Kingsley, notary public, that the said Benjamin D. Harris resided in Madison county, Alabama., in 1838 ?
    “ 4. Were you acquainted with the plaintiff, James Robinson ? if so, state where he resided in 18.37 and 1838.
    ££ First. I was not acquainted personally with Benjamin D. Harr's in 1837 and 1838.

      “ Second. I do not know whether said Harris resided, in Tennessee or Alabama in 1837 and 1838.
    ££ Third. I have no recollection of A. Kingsley having applied to me in reference to this particular case ; he often made application to me in regard to the residence of persons living in Alabama ; I know that títere are a great many of the name of Harris residing in Madison county, Alabama; and from the fact of the drawers of the note living in Madison county, I may have told the notary public what my belief was as to the ¿residence of Mr. Harris, but not. from any personal knowledge I had of his residence.
    , “ Fourth. I was acquainted with the plaintiff,(James Robinson, he resided in Nashville in the years 1837 and 1838.
    (Signed,) N. HOBSON.”
    Also, the deposition of Joseph Estell, which is as follows.
    “ The Deposition of Joseph Estell.

      Question by defendant. Were you acquainted with the defendant in.the years 1837 and 1838 ?
    “ Answer. I was, and for some.time before.
    “ Question by same. X)o you know whether the defendant resided in. Tennessee or Alabama in 1837.and 1838 ? t -
    “ Ans.. I understood that he resided in Alabama in 1837 and 1838. I never saw him in Alabama, and how it was that-I under.stpo.d' that he resided in Alabama in these years I cannot; now -recollect f but such was my belief of his place of residence.
    “ Ey same. Have you any recollection of telling Alpha Kingsley, notary public, that the defendant resided in Madison county, Alabama, in 1838 ?

      . “ Ans. I have no recollection- that I ever told Alpha Kingsley that the defendant resided in Madison county, Alabama, in the year 1838 ;. Mr. Kingsley has often inquired of us, that is, of my brother, while living, and myself, as to the residence of persons in Alabama, but my recollection does not serve me as to the name of any of those about whom fe made inquiries.
    “ By same. Were you acquainted with James Robinson ?. if so, state where he resided in 1837, 1838.
    “ Ans. I was acquainted with James Robinson ; he resided in Nashville,- Tennessee, in the years 1837 and 1838.
    (Signed,) JOSEPH ESTELL.” *
    Defendant also introduced Joséph Bradley as a witness, who proved that, previous', to the maturity'of said note, plaintiff had directed to him at Huntsville, .Madison county, Alabama, notices to all the parties to the note, requesting him to hand them to the defendant and the'other parties, the notices being intended to remind them when the said, note would fall due. Witness directed the notices to the post-offices of the parties respectively-, and to defendant at his post-office at Cross Roads, Madison county, Alabama ; but the notices of protest of said note were not sent to witness ; witness acted as plaintiff’s friend in the matter ; there was no evidence to show, that the' notary knew who was the holder of the bill, or where he resided.
    The court instructed the jury, that if they believed that the notary made the inquiries stated in his depositions, and sent notice to defendant as therein stated, he being ignorant of his true residence, that the notice was sufficient to charge the defendant, and that, under the circumstances of the case as proved, it was not necessary to make inquiry of the holder of the note as to the residence of the indorser: to which instructions the defendant excepts, and prays the court to sign and seal this bill of exceptions, which is done accordingly.
    WM. CRAWFORD, [seal.]
    The cause was argued by Mr. Crittenden, for the" plaintiff in error, and Mr. Brinley, for the defendant in error.

      M.. Crittenden. .
    It is insisted, on the part of Harris, that the instruction given by the court is erroneous : —
    1st. In making the sufficiency of the notice depend exclusively on the jury’s belief of the circumstances stated in the deposition of Kingsley.
    2d. In instructing the jury, “ that, under the circumstances of the ease, it was not necessary (for the notary) to make inquiry’ of the holder of the note as to the residence of the indorser.”
    Harris, on the contrary, insists that “ the circumstances of the case ” were.ihese, namely, that Robinson was the holder of the note; that he was known as such to the notary ; that he lived in. Nashville at the time, and might have been easily and immediately found, and could, in all probability, have given the required information as to the residence of Harris, and the post-office nearest to him. It is insisted that all these circumstances are proved by or deducible from the evidence ; and .that it ought to have been left to the jury, with the instruction, that, if they believed all these circumstances to have existed, then that it was necessary for the notary to have made inquiry of the holder of the note as to the residence of the defendant, Harris ; and that if, in consequence of his neglecting to make that inquiry,, he misdirected the notice to Harris, then that such misdirected notice is not due notice, or such as entitled the said Robinson to'recover in this action.
    ^ • The .general law is, that the holder must give notice. The noiaiy ir a mere agent of his. The inquiry as to Harris’s residence ought to .have been made from Robinson, who lived in Nashville. Story on Bills, 334, § 309 ; Chitty on Bills (8th edit.), ch. 10, pp. 515, 516, 524, 525 ; Bayley on Bills (5th .edit.), ch. 7, § 2, pp. 280 — 283. -
    . If the holder does not know, he should inqüire. Much more. thén, should the notary. A notice is more than a mere matter of form, for it might have enabled Harris to save the debt.

      Mr. Btinfey, for defendant in error,
    stated the case and then proceeded;
    1st. A demand of payment of a note should be made on the last dgy of' grace, and notice of the default of the maker be put into the post-office, if he’live in another place, early enough to be sent by the mail of the succeeding day. Lenox v. Roberts, 2 Wheat. 363.
    2d. If there be no post-office in the town where the indorser re-r sides, the notice máy be §eñt through the post-office to the post-office nearest to his residence;. Freeman v. Boynton, 7 Mass. R. 483 ; Ireland v. Kip, 11 Johns. R. 231.
    3d. The putting of notice into the post-office is sufficient, without proof of its having been actually received. Munn v. Baldwin, 6 Mass’ R. 316 ; Miller v. Hackley, 5 Johns. R. 375; Dickins v. Beal, 10 Peters, 572 ; 1 Bell’s Comm. (5th edit.) 418.
    4th. If due diligence be used to give notice to the indorser, and he cannof be found, this is equivalent to due notice. Stewart v. Eden, 2 Caines’s R. 121 ; Smyth v. Hawthorn, 3 Rawle, 355 ; 1 Bell’s Comm. (5th edit.) 418.
    5th. If the indorsee is ignorant of the indorser’s place of abode, it is an excuse for not giving him notice.; and then it becomes a question of fact, whether he used ‘ due diligence to discover it. Bateman v. Joseph, 12 East, 433.
    6th. Whether due. notice has been given, all the circumstances necessary for the giving of such notice being known, is a question of law; and the court will determine upon the facts. Where the facts are contested, the question of law becomes mixed with fact, and is for .the. decision: of. the jury, under instructions from the Court -upon -the' hypothetical state of facts. claimed to be proved. Eagle Bank v. Chapin, 3 Pick. 180 ; Bank of North America v. Pettit, 4 Dallas 127 ; Robertson et al. v. Vogle, 1 Dallas, 252 ; Hussey v. Freeman, 10 Mass. R. 86; Bryden v. Bryden, 11 Johns. R. 187 ; Davis v. Herrick, 6 Ohio Rep. 55 ; Bank of Utica v. Bender, 21 Wend. 643 ; Bank of Columbia v. Lawrence, 1 Peters, 578 ; Dickins v. Beal, 10 Peters, 572.
    7th. The defendant excepted to that portion of the opinion of the Court below which maintained, that it was not neéessary to make inquiry of the holder of the note as to the residence of the indorser.
    The inference is, that had such inquiry been .made, the requisition of due diligence "would be satisfied. The inference is sustained by the authorities. But there is no case which decides (hat. such an inquiry of tfie holder is indispensable ; they decide that such an inquiry is proof of due diligence, not that it is the only proof of such’diligence ; that it is sufficient, not that it is indispen-' sable. For instance, inquiry of one.of the parties to a bilbas to the residence of the indorser is due diligence. Beveridge ®. Burgis, 3 Camp. 262.
    /The holder of a bill, as indprsee, went to the house of his immediate indorser to inquire the residence of the first indorser, and At was held’ to be due diligence. Bateman v. Joseph, 2, Camp. 461.
    Where the notary made inquiry of the' second indorser as to the residence of the first indorser, who informed him that notice to an office in a post town, which, it seems, was three miles and a half from the first indorser, and where he did not receive his papers and letters, it was held to be due diligence. Ransom v. Mack, 2 Hill, 587.
    7Where the holder, before the note became due, applied to one of the parties to ascertain the residence of the indorser, and he declined giving him any information, the holder was not obliged, after the bill became due, to renew his inquiries of that party. Firth v. Thrush, 8 Barn. & Cressw. 387.
    8th. There is no evidence to show that the notary knew who was the holder of the note. He had a right to infer that it belonged to the .Planters' Bank ; he accordingly inquired of the cashier where the parties lived, that he might notify them, and duly mailed notices of protest to Madison county, Alabama, their supposed place of residence. This .was sufficient.
    Notice of non-payment to an indorser was left at his boardinghouse, where he was reported.to reside ; but it seems, some weeks before the note fell due, he left Philadelphia for Europe, without the knowledge of the holder of the note. . The notice .was sufficient, as reasonable diligence had been used' to ascertain the residence of the indorser.. M’Murtrie v. Jones, 3 Wash. C. C. Rep. 206. .
    A bill, was drawn and' dated at New York, on persons .residing iñ that city, who accepted it. The drawers resided in Petersburg, Virginia. The bill being protested for non-payment, two .letters were put into the post-office, giving notice to the drawers, one directed to New York, and the other to Norfolk, Virginia, the supposed place of .their residence. It was holden that this was sufficient notice, inasmuch as it did not appear that the holder knew where the drawers lived, and notice had been directed to their supposed place of residence. Chipman v. Liscombe, 1 Johns. R. 294.
    Besides, there was no evidence to show that the notary, in the case' under consideration, knew who was the holder of the bill, or where he resided.
    If, after reasonable diligence on the part of the holder, the residence of the indorser cannot be ascertained, an excuse is furnished for a failure to give notice. The rule in such cases is, not that it .is sufficient to send the notice to the last place of {residence of the indorser, or to the place at which, the bill or .note bears date, but that it is sufficient to send it-to the office believed to be the proper one, from information acquired, upon due diligence to ascertain if. Hoopes & Bogart v. Newman, Executor, 2 Smedes & Marshall’8 Rep. 71 (Mississippi Rep., January term, 1844), cites Chitty on Bills, 486 ; Nichol v. Bate, 7 Yerger, 305 ; Chipman v. Lipscombe, 1 Johns. R. 294.
    9th. But suppose that the notary, knowing that Robinson was the holder of the tfote, had applied to him for information, wnat would have been his answer in regard to the residence of the parties ? Undoubtedly it would have been, that to the best of his knowledge they resided at Huntsville, Madison county, Alabama.
    The defendant introduced Joseph Bradley as a witness, who proved, that, previous to the maturity of the note, Robinson had directed to him, at Huntsville, notices to all the parties to the note, requesting him to hand them to Harris and the parties, to remind them when the note would fall due.
    There is nothing to prove that Robinson was informed that they were delivered to any place other' than Huntsville. Of course, had the notary known that Robinson was the holder, and consulted him as to the residence of the parties, he must have answered, that notices had better be sent to Huntsville. . The notary did so direct, substantially ; that is, he directed the notices, u Madison county, Alabama,” knowing that, from the general rules of the post-office department, they would be sent to Huntsville, the county seat. '
    . 10th. There is no conflict between the testimony of the notary, and. that of Messrs. Hobson and Estell; the former swears that he applied to them for information as to the residence of the parties ; they could not recollect that he did in -this case in particular, because he often inquired as to the residence of persons living in Alabama. His positive testimony, as to a fact which he was interested to ascertain, must he believed ; it more than counterbalances their want of' recollection, it being of no interest- to them to remember.
    Chitty, in his Treatise on Bills (8th A-mer. edit.), 486, says, that {< the. holder of a bill of exchange is excused for not giving regular notice of its being dishonored to an indorser, of whose place of residence , he is ignorant, if he use reasonable diligence to discover where the. indorser may be found ” ;'in-support of this undeniable position, he cites Pothier de Change, n. 144. ’ The reasoning of Pothier and of Pardessus (Droit Com., tom. 2, art. 426), in the Opinion of Judge Story (in his Commentaries' on the. Law of Bills of Exchange, 350, 351), covers thé case stated by Chitty, though' they both treát- in those sections of the force majeur.Jvis major) as an excuse for a non-compliance by the holder with the requisites of law, and not upon the question of ignorance of residence. The continental and civil law, which is identical with the common law and common sense, do not require impossibilities.- The law does not presume that the holder of the paper is acquainted with the residence of the indorsers ; and if ihe notary or.holder, after diligent inquiry as to the residence of the indorser, cannot ascertain it,, or mistakes it, and gives the notice a wrong direction", the remedy against the indorser is.not lost. 3 Kent’s Comm, 107 ; Barr v. Marsh, 9 Yerger, 253 ; Story on Bills of Exchange, 334-347, in notes. The rule of due diligence “ must not be such as to clog commercial operations.” Bank of Columbia v. Lawrence, 1 Peters, 578.
   Mr. Justice WOODBURY

delivered the opinion of the majority of the court.

Under the bill of exceptions in this case, the proper practice in some important particulars respecting notices, of. non-payment of promissory notes and bills of exchange' is involved. It appears that the defendant was indorser of such a note, and at the trial the court instructed the jury, that if they believed that the notary made the inquiries stated in his depositions, and sent notice to the-defendant as therein stated, he being ignorant of his true-residence, that the notice was sufficient to charge the defendant,, and that, under the circumstances of the case as proved, it was not necessary to make inquiry of the holder of. the note as to the residence of the indorser ; to which instructions the defendant excepts.

The substance of the inquiries which were made, as shown in the depositions, was, that the note, being “ payable and negotiable at the Planter’s Bank of the State of Tennessee, at Nashville,” tbs notary, after presenting it.and payment being refused, inquired of those “ not unlikely ” to know the residences or nearest post-offices of the indorsers, as they were not known to him. He recollects,as one of whom he inquired,the cashier of the bank, and was-informed by him that'Harris lived, in Madison county, Alabama, but that he did -not know his nearest post-office. The notary made similar inquiries of a Mr¡ Estell, who had resided in Madison county, but was found to be ignorant of the defendant’s nearest post-office ; and the notary adds, that, knowing “ no other source -from whence to derive information as to where to direct ” the notice, he “ accordingly directed” this and others “to Madison county, Alabama, knowing that, from the! general rules of the post-office department, they would be setit to Húntsville, the county seat.”

The. only “ other circumstances, of the case as proved,” to which die judge probably refers, are, that the ñamé of the present plaintiff appears on the back of the note as-the last indorser; that he was then an inhabitant of .Nashville; and that Joseph Bradley, a witness for the defendant, testified, that before the note reached maturity, he, then living at. Huntsville, received notices from Robinson for Harris-, and the- other indorsers, “ requesting him to hand them to the defendant and the . other parties,” in order “ to remind them when said note would fall due,” and that he directed the notice for Harris to his post-office at Cross Roads, in Madison county.,

It is further stated, as a part of the case, “ theré was no evidence to show that the notary knew who was the holder of the bill, or where he resided.”

These being the facts as proved concerning the inquiries and circumstances to which the judge refers, he properly considered it a .question of law,- whether,- upon those facts, if believed by the jury, it was necessary to make inquiry of the holder himself as to the residence of the indorsers, and whether the notice as given Was in all respects sufficient to charge the defendant. Bank of Columbia v. Lawrence, 1 Peters, 583 ; 10 Peters, 581 ; Bryden v. Bryden, 11 Johns. R. 187 ; Hadduck v. Murray, 1 New Hamp. R. 140.

It is to be regretted, that some other facts were not agreed or,re-' ferred to the jury; such as the distance of the residence óf the defendant, as well as of the Cross Roads post-office, from Huntsville; whether he was accustomed to receive letters at the former place ; and who in truth was the holder of . the note at the time-it fell due. But the judge properly submitted.to the jury whatever facts the parties chose to present; and it is usually the best course thus to submit complicated questions of law and fact, accompanying them, however, with due legal instructions as to' the rules which ought to govern. 3 Kent’s Comm. 107. Then the instruQtions can-as .easily be revised as if the case was withdrawn from the jury,’and, what is very desirable, the rules as to commercial paper can be preserved as uniform over the commercial world, and the holders of it have, as they ought to have, a fixed standard^ on a like state of facts, for protecting as well as knowing their rights. 11 Johns. R. 187 ; 1 D. & E. 168 ; 1 New Hamp. R. 140.

The first objection that has been raised under the instruction's or ruling of the court is, that the notice does not appear to have-been given by. the holder of the note. There is no evidence here to indicate any persbn except Robinson or the bank as fee holder •at that time, and probably at the trial it was taken for granted to be one of them, without making any point concerning it to the court ■ or jury. Whichever it -was, there is no pretence but that the notary came into possession of the note from the agent of the holder lawfully, and with a view, as ageñt, to make the demand, and if not paid to give dué notice.. When notes, are left at banks for collection, the notaries may often be ignorant óf the names of the holders, as the notes are handed to them by the cashier. He would as properly do this business when employed by an agent of the holder, as by the holder himself;. and having the note in. either of. these ways, he would be competent in law to' deliver it up if paid, or, if not paid, to give notice of that fact to the indorsers. It has been adjudged, that any agent of the holders may .give notice. Chitty on Bills', 527 ; Bank of Utica v. Smith, 18 Johns. R. 239, in point; Stewart v. Kennett, 2 Camp. R. 177, by Lord Ellenborough, 178 ; 3 Kent’s Comm. 108 ; Stanton et al. v. Blossom et al., 14 Mass. R. 116 ; 7 ibid. 486 ; 9 ibid. 423.

The agent to collect the note may do it. Mead v. Engs, 6 Cowen, 303 ; 3 Bos. & Pull. 599 ; 2 Taunt. 38 ; 15 East, 291 ; 9 East, 347 ; I Camp. R. 349 ; Ogden et al; v. Dobbin et al., 2 Hall’s Rep. 112.

And in 9 Yerger, 255, it was decided that a.notary public is a suitable agent for this purpose* . It was done by a notary of the agent in 2 Hall, 112.

The meaning of the rule that the holder must give notice is, not that he may not do it by an agent, as any other commercial act, but that it shall not be given by some other party on the hill not standing in. the relation in which the holder does, and who has no right to give it and try to make the indorser responsible when the, holder may be willing to waive a resort to him.- Tindal v. Brown, 1 D- & E. 170 ; 7 Yes. jr. 597 ; 1 Esp. R. 333. In this case the notice is express,'that “ the holder looks to yon for payment as indorser” of the bill, and the notary had the note in his possession (11 East, 117 ; 2 Camp; 178) in order to make demand and give notice in behalf of the holder.

The only '" maining questions which are material are, whether any farther inquiry, and especially of the holder of the note, ought^ to have been made by the notary, as to the residence of the indorsers, before despatching the notices, and whether the notices sent were sufficient, considering the information he obtained, and his ignorance of the true residence of the indorsers. It was a part of the evidence, that the incjorsers lived remote in another State, and that the notary was.ignorant of the exact places of their abode.

Under such circumstances, he was undoubtedly bound to make inquiries of persons likely to be acquainted with their residences. This he did ; and, among them, of the cashier of the bank, the person most likely to be acquainted with the pláce of abode of those making paper negotiable and payable at the bank, and of another person who had lived in the same county with the indorsers, and not getting entire certainty from either, he sent the notices, addressed as accurately as his information enabled him,.to the county where they lived, and from the capital of which the notices would be likely to be forwarded to the indorsers. ,

This, in most cases, might be sufficient aa to inquiry,' and especially where nobody was .known to reside near who. was able and bound to give fuller and more accurate information on that subject. It would usually satisfy a-jury that thé due diligence had been ^"exercised which, and which only, the law imposes. Chitty on Bills, 525 (8th Amer. ed.); 2 Camp. 461. But it is argued in this case, that the holder probably lived in Nashville,- and could and ought to have- been resorted to on this occasion for such information. Chitty on Bills, 525. This argument is not without force,,'and might be insuperable if the notary knew who the holder was, and did not obtain otherwise all the' intelligence"on this subject which the holder probably possessed. But the evidence not showing that he knew him, did he resort to the holder’s agent, and obtain from him all the information on this point which the holder himself was likely to have possessed ?

Supposing the bank to have been the holder, the cashier, its... agent, was resorted to,.and doubtless' gave all the intelligence in possession of the bank on this subject.

But supposing Robinson to have been the holder, which is the only, other probable presumption on the evidence, and which is contended for by the defendant, and then the cashier was doubtless. his agent-to collect the note,'and received from Robinson all he knew as to the residences of the prior'indorsers, and communicated it to the. notary when applying to him on the subject.. This is not only the general inference from what would he likely to take place on such occasions, but is strengthened in this case from the testimony of Bradley, on the part of the defendant, saying that Robinson; a short time prior, had sent notice to him at Huntsville for these parties, stating when the. note fell due, and that, he rer quested him to hand them to these indorsers. Fr.om this it is obvious that Robinson supposed they resided in Huntsville, or he would have sent the notices to a different place ; and he would not probably have desired a resident of Huntsville to hand'Jhem to the indorsers, unless he believed they lived in the same place.

•There can be little doubt, on this evidence, that the real holder, whether the bank or Robinson, .did give to the cashier all the information the holder possessed on this subject, and , that the cashier communicated the same to the notary, and that the latter would have obtained no more had he. known and resorted , to the holder in person,' and that the cashier, in conforming to this information, by addressing notices to Madison county, supposing that, by the rules of the post-office department, they would be sent to Huntsville, the county town, did all which duty required of him.

Beside the light flung on this subject, and favorable’ to this conclusion, by some of the general positions in the authorities cited at the bar, there are several precedents whjch bear more directly on a state of fac.ts such as exists in this case, and which deserve special notice, as they fortify the correctness of the. views we have presented.

In Stewart v. Eden, 2 Caines, 121, the court ruled, that the holder was bound, tp inquire no farther than a reaspriahje and prudent man- should, and said, “We do npt exact from him every possible exertion,” of inquiry. Only “ ordinary diligence ” is required in inquiring. ' Catskill Bank v. Stall, 15 Wend. 367. Only “ reasonable diligence.” Fisher v. Evans, 5 Binney, 543. So in Chapman v. Lipscombe, 1 Johns. R, 294, where a bill was drawn and dated in-Pfew York city, on’ persons there, and accepted, but' pro-, tested afterwards for non-payméht, and it did not appear that the holder knew where the drawers lived, but sent two notices to them, one addressed to New York and one to Norfolk, it was held that they were good, though the drawer in fact lived in Petersburg.

In that case, inquiry, was made at the banks and elsewhere, and notice was sent in conformity with the information received ; but he did not inquire of the acceptors, who lived in New York, and could have told him correctly where the drawers lived.

In 3 Kent’s Comm. 107, it is laid down, that notice need not always, be sent to the post-office nearest to the indprser’s residence. It suffices, if sent to the nearest which can be ascertained on due inquiry. And in 1 Peters, 578, and 2 Peters, 551, whére a notice like this was addressed ..to the indorser, as belonging to the county in which he lived, the same rule is recognized. It is true, that there the party in fact resided near the county seat, .or received some of his letters there, about which there is no particular proof here ; but it is said to be proper to address,a notice-in that way, “ if after due inquiry it is the only description within reach of the peíson sending the notice.”

It-is’ enough to send the notices to the place where the information received reasonably requires him -to send them. 2 Car. & Payne, 300 ; 1 Barn. & Cressw. 243 ; Bank of Utica v. Davidson, 5 Wend. 587. If the place it reaches is the wrong one, he is then not in fault. 5 Yerger, 67. All his duty in this case is; to use ordinary diligence ” on the subject, and not to insure at all events that the notice actually reaches the indorser. 1 Peters. 582 ; 10 ibid. 581.

In Barr et al. v. Marsh, 9 Yerger, 255, it was held, that the holder was not bound or- presumed to know where the indorser lived. But. it was enough if the agent of the indorsee or holder made due inquiry, and directed the. notices to the places -indicated by the iriformation, though wrong. It was the best that could be done under the circumstances. Nichol v. Bate, 7 Yerger, 307 ; Dunlap v. Thompson .et al., 5 Yerger, 67. Where so many post-offices exi’stj the residences of parties change so often, and people live so remote from* each other., as in this country, it would clog’ the circulation of negotiable paper if the holder or his agent was bound to know every alteration in the residence of indorsers. The inquiries were at the bank, and of other persons, in the case of Barr v. Marsh, much as in this instance.

In- Sturges et al. v. Derrick, Wightwick Exch. Cas. 77, an inquiry was. made of the son of an indorser as to his residence, and he did not know if, and the court'held, that sufficient diligence had been used.” And in Stuckert v. Anderson, 3 Wharton, 116, the case itself on examination shows that an inquiry of the officers of the bank where the note was discounted is deemed sufficient, if there be no others near who are likely to know more as to the residence of the indorsers.

Some cases, it is true, have been more stringent, such as 13 Johns. It. 434, and 3 Camp. R. 262 ; but they do not contradict our conclusions, as in the first one the notice was sent to a wrong place quite remote, and the inquiry is said to have been limited ; while in the last, no inquiry was made except at the “ house ” where the bill was payable.. Most of the cases referred to on this point, of due diligence in making inquiry, are rather cases as to due diligence in respect to the time when the notices are sent.

Some of those, as bearing on this, allow a very liberal time to make-inquiries where the residence is remote (2 Barn. & Cressw. 246 ; 8 ibid. 393 ; .2 Dowl. & Ryl. 385 ;, 2 Mood. & Ry. 359) ; and only require the notice to be ‘sent as soon as information is obtained!under proper exertion (1 Barn. & Cressw. 245 ; Gow’s R. 81 ; 2 Camp. R. 462). And some go so far as to excuse giving notice at all, if the place of residence at the time is unfixed (4 Camp. 285), or cannot be ascertained (10 Peters, 580, and 9 Wheat. 591, before quoted). In the case now under consideration, then, the conclusion seems well sustained, that reasonable inquiries were made as to the residences of the indorsers, and notices promptly despatched, by a proper agent, in conformity with the information received. Whether the notices were actually received or not, and whether, if received, it was not as soon as if they had been directed to the Cross Roads post-office, does not appear, nor is it- material, as the circumstances before mentioned show due diligence, and thus make out a sufficient case, whether the notices ever-reached the indorsers-or not. Let the judgment below he affirmed. .

Mr. Justice McLEAN.

I dissent from the opinion of the court in this case with regret.

The Circuit Court instructed the jury, “that if they believed that the notary made the inquiries stated in his deposition, and sent notice to the defendant, as therein stated, he being ignorant of his place of residence, that the notice was sufficient to.charge the defendant ; -and that under the circumstances of the case,, as proved, it was not necessary to make inquiry of the holder of the note as to the residence of the indorser.”

The note was given by John P .'Burks & Co. to Matth. Burks,for. sixteen hundred dollars, in eight months from its date, payable and negotiable at the Planters’ Bank of the State of Tennessee, at- ’ Nashville. It was indorsed by Matth. Burks, Beniamin D. Harris, the defendant below, and also by J. Robinson, the plaintiff. The note does not anuear to have been negotiated at the-bank. A. Kingsley, the notary,-made a demand of-'payment at the bank when the note become due, but it does not appear who delivered it to him. ■ Notices of non-payment were directed by the notary to Matth. Burks and Benjamin D. Harris, the two first indorsers, to Madison county, Alabama.

. He did not know where these indorsers, resided, but Hobson, the cashier of the bank, to whom he applied for information as to their place of residence, informed him that they lived in the above county and State. Similar information was communicated to him by Joseph Estell, but neither of these individuals knew die post-offices nearest to the respective indorsers.

Bradley, a .witness, stated, that, previous to the maturity of the note, Robinson directed to him, at Huntsville, Madison county, Alabama, notices to all the parties to the note, requesting him to hand them to Harris and the other parties, stating the time when it would become due. And that witness directed the notices to the respective post-offices of the parties. To Harris, he directed the notice to tifie post-office at “ Cross Roads,” Madison county, Alabama.

' On this state of facts, the court instructed the jury,. “ that the notary, was not bound to inquire of the holder as to the residence of the'indorsers.”

The notary did not act for himself, but as agent of the holder ; and it was prove,d that Robinson, who appears to. have been the holder, resided in the same town with the notary, and knew the proper direction for the notices. Now .the holder is bound to give the, notice himself, or through his agent; and can he evade the law by .employing an agent who is ignorant of the residence of the indorser,- which is known to himself. He knows where the indorser resides ; is he not then bound to direct the notice as the law requires ? It is a new principle in the law of agency, that the knowledge of the principal shall not affect him, provided he can employ an agent who has no knowledge on the subject. The holder is bound to communicate to the notary all. the knowledge he has, so that -the notice may be properly directed. And if this be not done, and the notice is improperly, directed, the holder loses his recourse against, the indorser. This seems to me to be clear of all doubt.

In the case of Preston v. Daysson et al., 7 Louisiana Rep. 7, it was held, “ that the' holder, of a bill or note ought, not to avail him-self of the ignorance of the notary.as to the residence of the indorsers in giving'them notice of protest; if he knows, he must disclose their residence, or it seems that his neglect will discharge the indorsers.” And this is the case now .before the court.

There was no proof that the notary knew where Robinson, the plaintiff below, resided ; but it i^-proved that he lived in the same town, his name being on the-note, and from the fact that the notary gave no notice to.him, as indorser, it is clear that he knew he was the holder. In Hill v. Varrell, 3 Greenl. 233, it.was held, “ that where the residence of the drawer of a bill is unknown to the holder, he ought to inquire of the other parties to the bill i| their residence is known to him.” And in Hartford Bank v. Stedman, 3 Conn, Rep. 489, “ where the holder, who was ignorant of the indorser’s residence, sent the notice to A., who was acquainted with it, requesting him to add to the direction the indorser’s place of residence, it was, held sufficient.”

“ If the holder of a bill uses reasonable diligence to discover the residence of an indorser, notice given as soon as this is discovered is sufficient.” Preston v. Daysson et al., 7 Louisiana Rep. 7. In Beveridge v. Burgis, 3 Camp. 262, Lord Ellenborough said, — “ Ignorance of the indorser’s residence may excuse the want of due notice, but the party must show that he has used reasonable diligence to find it out. Has he done so here ? How should it» be expected that1 the requisite information should be obtained where the. bill was-.payable ? Inquiries might have been made of the other persons whose names appeared upon the bill,” &c. In Bateman v. Joseph, 12 East, 433, “in an action by an indorsee against the payees and first indorser of a bill, it appeared the plaintiff received notice of its dishonor on the 30th of. September, in time to give notice to the defendant on that day ; he gave no notice, however, until thé 4th of October ; to excuse which, his clerk, proved that the plaintiff did not know the defendant’s residence until that day. Lord Ellenborough left it to the jtoy, whether the plaintiff had used due diligence to find the defendant’s residence.”

In Story on Promissory Notes, 370, note 1, it is laid down, — ' “ That merely inquiring at the house where a bill is payable is not due diligence for finding out an indorser. Inquiry should be made of some of the other parties to the bill or note, and of persons of the same name.” And again, in page 368, note, — “ To excuse the not giving regular notice of the dishonor of a bill to. an indorser, it is not enough to show that the holder, being ignorant of his residence, made inquiries upon the subject at the place where the bill was payable ; he should have inquired of every other party to the bill.”

There is no pretence that the bank was the holder of this bill. For the evidence showed that the notary did inquire of the cashier of the bank where the indorsers resided. But the court charged, that, under the circumstances, it was not necessary for the notary “ to make inquiry of the holder of the note as to the residence of the iridorse.r”; the court, therefore, referred to Robinson as the holder, and jiot to the bank. This charge is wholly inconsistent with the supposition that the note was discounted by the bank, for then it would have been the holder, and the proper inquiry, as to the.residence of the indorsers, was made of it. The note bears no marks of its having been discounted. That Robinson was the holder appears from the notice he gave to the parties when the note would become due, from the fact that he was not notified as an indorser, and also that he commenced suit as the holder, after the dishonor of the note.

The turning point in the case is, whether the holder, in failing to give the proper direction to the notices by his agent, the notary, is not answerable for the knowledge he possessed of the residences of the indorsers, which he failed to 'communicate to the notary. I care not whether or not Robinson knew the post-offices of the indorsers. He had communicated with them through Bradley, the witness., and if the notices had been thus sent, the law required nothing more.

It will be observed, that the cases cited show the duty of the holder as to giving notice. And it is believed no case has been reportéd, except the one cited from Louisiana Reports, where it has been supposed that a principal, having knowledge of the residence of the indorsers could excuse himself from giving notice to them by a want of such knowledge in his agent. That the notary knew Robinson was the holder is conclusively shown, as before remarked, by not treating him as an indorser. His name was upon the note as an ir iorser, and he must have understood the purpose for which the indorsement by him was made.

All the authorities say the holder is bound to use reasonable diligence to ascertain the residence of the indorser; and. when he attains that knowledge, is he not governed by it ? And if so, is he not equally bound to cdmmunicate it to his agent whom he may employ to .give the notice ? A denial of this principle will overthrow the doctrine of notice, as éstablished for more than half a century.

I think the judgment should be reversed, and the cause remanded for a venire de novo, in the Circuit Court.

Mr. Justice McKINLEY dissented also.