
    American Life Insurance and Trust Company vs. Hubbard Emerson.
    A bill of exchange was protested in New York, on the 18th of February, and the notices of protest enclosed to the last indorser, who was the holder for collection, at Natchez, in this state, who received them on the 3d of March ensuing, and on the 6th of that month, gave the prior indorser personal notice; Held to be insufficient; the notice should have been given on the 4th.
    Where the holder of a bill of exchange, for collection, residing in Natchez, in this state, sent the bill to New York, where it was payable, and it was protested, and the indorser resided at a different point from either Natchez or New York ; whether the notary can send the notices of protest to the holder at Natchez, for transmission by him to the indorser 1 Query ?
    
    The holder of a protested bill or note, must prove affirmatively the fact of notice ; it cannot be left to inference or presumption.
    In error, from the Adams circuit court.
    This was an action of assumpsit, on defendant’s indorsement of a bill of exchange, drawn by Sprague & Howell, on Joseph Hoxie & Co., New York, for $5000, and indorsed by Noah Barlow, the defendant, and Thomas Henderson, cashier.
    There were two verdicts given for plaintiffs, and'new trials granted; on the third trial an agreed case, in the nature of a special verdict was made, which’exhibits a copy of the bill of exchange and indorsements thereon; the deposition of Campbell, the notary, who protested the bill in New York, who proved that he presented the bill to Hoxie & Co. for acceptance, which was refused, and he protested it for non-acceptance on 17th of February, 1837; that not knowing the residence of the indorser, &c., and no directions being on the bill, he inclosed notices of protest for the drawers and indorsers in a notice to “Thomas Henderson, cashier, die.,” which he directed to “ Natchez, Miss.,” and deposited them in the post-office, New York, on 18th February, 1837, before the closing of the southern mail on that day, about two o’clock, in time to go out by the mail of that day, which closed at half past three of each day.
    
      Also the evidence of Thomas Bunce, who proved, that on the 6th of March, 1837, T. Henderson, cashier of the Commercial Bank of Natchez, gave him a notice of protest of the bill of exchange, received from New York by mail, which was postmarked February 18th; the notice, directed to'Emerson, was delivered on the same day, in person. Witness was a clerk in the Commercial Bank, and was in the habit of calling at the post-office for letters for the bank and officers, but had no recollection, of calling on the 3d, 4th, or 5th of March, 1837, but knew that either himself or some clerk of the bank called for letters every day. He did not see the notices until the 6th March.
    It was also admitted that Emerson had once resided in Natchez about eight years before the 6th March, 1837, and had been in the habit, since removing from Natchez, of visiting there every winter on business, and has always had an agent there; generally came early in the winter, and left in the spring.
    That Dr. Wren was postmaster at Natchez, in February and March, 1837; that on 3d March, 1837, a mail arrived from New York, which was post-marked 16th, 17th and 18th February. And on 5th March (which was Sunday) a mail-arrived post-marked 20th, 21st and22d; that the 19th February was Sunday, and no mail had been received from New York, postmarked on Sunday. Wren was in the habit of comparing letters with post-bill, and thinks if there had been any mistake, he would have noticed it, and feels certain, if a letter postmarked February 18th, had arrived in the mail on 5th March, he would have noticed it; that the Commercial Bank had a box at the post-office, where all letters for the bank or any of its officers, were deposited until called for; that some clerk of the bank called every day; that letters were prepared for delivery immediately after the mails arrived, on Sunday as well as any other day. The mail at New York is made up daily, but generally two or three mails arrive at once.
    That Thomas Henderson, the third indorser, was acting as agent of the plaintiffs, at the date of the bill of exchange, and purchased the bill with plaintiffs’ funds, and remitted it to them, at New York, where they had an office of business. He indorsed it merely to transfer it; that neither he nor the bank had any interest in the bill. He was the agent of plaintiffs to purchase. After the bill was dishonored, the plaintiffs sent it to him as cash, &c. to collect of the drawers and indorsers. He had no interest in the bill, and did not consider himself as indorser otherwise than as agent of the plaintiffs.
    That Coddington was postmaster at New York, and a mail was made up for Natchez on the 18th February, 1837, which left at 5 o’clock, P. M., and that all letters deposited before half past three, P. M., went in the mail of that day.
    Thomas Emerson’s deposition proved that Hubbard Emerson, defendant, had a permanent place of residence, near South Reading, Mass., for twelve or fifteen years past, where his family remained permanently, and where he always had an agent to attend to his business, fully authorized to take his letters out of the post-office, examine them, and attend to his business generally. That he frequently left home on business, but always left his family at home, and an agent. That defendant, Emerson, was well known in New York, and his place of residence could have been ascertained on inquiry at the City Hotel or Astor House. It usually takes a letter thirty-four hours to pass from New York to South Reading.
    On this state of facts the court gave judgment in favor of defendant, Emerson, and plaintiffs prosecute this writ of error.
    
      McDonnold and Malkewson, for plaintiffs.
    The first point which suggests itself in this case is, whether the notice, received by the defendant of the protest of the bill for non-acceptance, was such a notice as the law requires. Although a notice from New York to South Reading would have reached the latter place sooner than it would if sent to Natchez and from Natchez to South Reading, yet if the notice had taken that circuitous route, that ordinary diligence which the law requires would have been used and the indorser bound. The notary in New York, being ignorant of the residence of the drawers and indorsers of the bill, could not do otherwise than inclose all the notices to the last indorser, and that indorser, although only an agent for collection, is considered in law as the real holder of the bill, for the pupose of receiving and transmitting notices. And therefore where notice is seasonably sent to such an indorser, and he immediately sends notice to a prior party, it is sufficient, though a direct notice sent from the holder would have reached him sooner. 2 How. 112; 3 Dana, 128; 5 Litt. 24; 2 Litt. 19; 4 Leigh’s Rep. 37. Although a notice from New York might have reached the defendant sooner if he had been at his residence in Massachusetts, and although, according to the authorities above cited, a notice mailed by the last indorser at Natchez, to the defendant at South Reading, would have bound him, yet we contend, from the facts in the case, that Emerson received the earliest possible notice of the dishonor of the bill, being delivered to him in person, the day the notices were received in Natchez. The fact that the postmaster at Natchez states that the mail post-marked at New York on February 18th, 1837, reached Natchez on the third day of March, 1837, although it somewhat conflicts with the statement of Mr. Bunce that the notice was taken out of the office at Natchez on the 6th day of March, 1837, certainly cannot favor the defendant, or affect the holder of the bill. The notary s,wears that he placed the notice in the post-office at New York on the 18th February, 1837, and Mr. Bunce proved that it was • the uniform custom of the bank to send to the post-office every day except Sundays, and their testimony is unimpeached. Suppose that the notice had arrived at Natchez on the third of March, and was not delivered to the person calling for the letters of the bank until the sixth of March, it surely could not be contended that the holder of the bill must suffer from the negligence of the postmaster or his clerks. Where a notice is to be sent by mail, all that the law requires of the notary is that he should place the notice in the post-office in the proper time and directed to the proper place, he is not supposed to be answerable for the irregularity of the mails or the negligence of those who superintend them. Bayley on Bills, 275 ; 3 Esp. N. P. C. 54; 9 East, 347; 1 Camp. N. P. O. 246. Putting a notice into the post-office is conclusive evidence of notice, even if the notice be never received. 1 Pick. 401 ; 6 Mass. R. 316.
    From this view of the case we are induced to think that the court below erred in the judgment which it rendered upoij. the special verdict for the defendant.
    
      G. Winchester, for defendant in error.
    Emerson is discharged as indorser upon both of two rules of law.
    1st. That the notice by mail should have been directed to him at the post-office in Reading, nearest his residence, unless by due diligence and inquiry made, his place of residence could ■¡¡(not be ascertained. Tunstal v. Walker, 3 How. 259; Dickens v. Beal, 10 Peters R. 581; Talbots. Clark, 8 Pick. 53 ; Hodges v. Galt, lb. 251; 1 Leigh N. P. 455 ; Bayley on Bills, 280, 281; Williams v. Bank U. >S'., 2 Peters, 102; Bateman v. Joseph, 2 Gamp. 246 ; Beverage v. Burges, 3 Camp. 462.
    By the rule established by the above authorities, had the holder in New York made the necessary inquiries and ascertained Emerson’s residence, and directed the notice by mail to him at Lynfield or South Reading, it would have been received in thirty-four hours, whereas, it was not served by the agent of the holder until the 6th of March, sixteen days after the dig-honor.
    But if, upon inquiry, he had been unable to ascertain his residence, then, 2d. The holders at New York, directing the letter enclosing the notice to their agent at Natchez, Thomas Henderson, to give the notice, the notice should have been delivered to Emerson at as early a day as he, Emerson, could have received it had the letter enclosing it been directed to Emerson himself. He might have received it on the third or on the fifth, as the office was open for delivery of letters on both days. Notice on the sixth was not as early as he might have received it, if directed to him. Sewa.ll v. Russell, 3 Wend. 276; Chanoine v. Fowler, lb. 173; U. States v. Barker, 12 Wheat. 559.
    But plaintiff cites several cases based upon the three following cases, all of which furnish a rule for a different case than this at bar.
    In Tunno &p Cox v. Lague, 2 Johns. Cas. 1, 2, it is decided that “ where an agent receives, a bill in order to obtain payment, he must send notice of non-acceptance and non-payment with the protests to the remitter, whose duty it is to give immediate notice to the drawer.” The court say, “ Had Lenox been the real holder, he ought to have given notice of the non-acceptance to the drawer before the 8th of August, either at his dwelling-house, or if his residence was not known, to have sent it to Jeremie, where the bill was drawn.”
    But Lenox was an agent of the holder, and his duty extended no farther than to give notice to his principal of the § non-acceptance and non-payment, and to transmit the requisite protests, in order that the holder might give notice to the drawer.
    If the agent undertake to give notice, it will be good, if it be given as early as it could have been received from the holder. Tunno Sf Cox v. Lague, 2 Johns. Cas. 1, 2.
    The court cite Haynes v. Berks, 3 B. & P. 599. The same rule is decided in 5 Mass. These are the leading cases, to which all the cases cited by plaintiff’s counsel refer, and all his cases are in support of and founded upon this rule.
    In the above case, the holders of the bill resided at Jeremie, in South Carolina; the bill was payable in New York, and sent by the holder to Lenox, at New York, for collection.
    In Colt v. Noble, 5 Mass. 168, Parsons, C. J., says: “The point in the cause substantially submitted to the decision of the court is, whether the ágents in London, of the holders of the bill in Madras, were bound to give notice of the protest to the defendant, the indorser, or only to return the bill, with the protests, to their principals, who were seasonably to give notice. We do not find this question expressly settled by any decision in point. It is stated in Kyd on Exchange, that when a bill is remitted to a factor, to procure acceptance, it is the duty of the factor to use due diligence to have it accepted, and to give advice to his principal of the event, that in case of nonacceptance he may take the próper steps. And if the holder present the bill, and it be dishonored, he is bound to give notice to all the preceding parties to whom he intends to resort. And this course of conducting the business, we are satisfied, is agreeably to the law on this subject.”
    In this case the indorser, the defendant, resided in Portsmouth, New Hampshire, the holder in the East Indies, at Madras, and the agent in London, where the bill was protested. The agent remitted the bill and protests to his principal, the holder, at Madras, and the holder then sent the notice to the indorser, at Portsmouth.
    These three cases, from 3 B. & P., 2 Johns. Oases, and 5 Mass., merely establish the rule, that an agent of the holder is not bound to send notices by the first mail, directly to drawer and indorsers, but that he must return the bill and protest to the holder; but so soon as they come to the holder, he is bound to give the notices, directly and immediately, to drawer and indorsers, to make them liable. The cases cited by plaintiff’s counsel are to the same effect, and refer to these three cases in their support. The only difference is, that in the cases cited there are a succession of agents.
    In the case in 4 Leigh, 37, Welder, the holder, living in -, sent the bill for collection to his agent, the cashier of a bank at Petersburg, who indorsed it, as agent, and sent it to a second agent, the cashier of a bank at Norfolk, where the bill was payable, and protested. The court decided the agent at Norfolk was not bound to give the notices direct to the drawers and indorsers, or make inquiries for their place of residence ; but according to the authorities, in B. & P.4 2 Johns. Cases, 5 Mass, and 5 Cowen, he had a right to remit the bill, protest, and notices, to the agent in Petersburg, who should have remitted to his principal, Welder, who would be bound to give the notices directly and immediately.
    So in 5 Cow. 303, Mead, the holder, living in New York, sent the bill to his agent, the cashier of a bank at Providence, who indorsed and sent it to a second agent, the cashier of the bank at Bristol, where it was payable, and protested; and the court decided, that the agent at Bristol did right to transmit to the agent at Providence, and the agent at Providence to transmit it to the holder.
    In other words, that where there is a succession of agents successively indorsing it, that it may be transmitted back from agent to agent, until it reaches the holder, and in its passage back, that each agent who indorses may be considered a holder, for the purpose of transmitting the notices, and be entitled to one day after he receives.
    So in 3 Dana, 128, and all the other cases cited, they are cases of agents, or an agent, who is not bound to give notice or tó ascertain the residence of indorsers and drawers, sending back the bill to the holder; or if they give notice, giving the notice as early as it could have been given, provided they had sent it back to the holder, and when it reaches the holder, he is bound to give immediate notice, and to make inquiries and use due diligence to ascertain the residence of drawer and indorsers, if he would hold them liable.
    None of these cases countenance a rule, that where the holder resides at the place where the bill is payable or protested, that he, or his agent, the notary, may transmit it to a distant agent of the holder, to give the notices by a circuitous route, instead of using due diligence to ascertain the residence of the indorser, and sending the notices direct to his place of residence, directed to him. According to all these authorities, the notary in New York should have returned the bill to the plaintiffs, in New York, the holders, and they should have made inquiries, used due diligence to ascertain the residence of Emerson, and sent the notice by the next mail to his residence; or if the notary,'as agent, undertook to give the notice for the holder, he should have made the inquiries, and should have given the [notice as early as the holders, the plaintiffs, could have done, had he returned the bill and protest to him.
    Instead of returning the bill and protest to the holder in New York, or giving as early notice to Emerson as the holder could have given, had the notary returned it to the holder, he, the notary, without making any inquiries for the residence of Emerson, sends the notice away to Natchez, to the agent of the holder, and Emerson, happening to be there, gets the notice through this agent, to whom the holder has sent it, three days later than he might have got it, if the letter inclosing it had been directed to him. The plaintiff’s own cases show the reverse of this. They not only show that the agent may so transmit to the holder, because he, the agent, is not bound to give notices direct to indorsers, or to make inquiries for his residence ; but they also show, that the holder cannot so transmit to an agent, but that he is bound to give direct and immediate notice, and make due inquiries for the indorser’s residence, if he wishes to hold him liable.
    The other cases cited by plaintiffs’ counsel, only show “ that it is immaterial whether the indorser ever receives the notice of dishonor, or not, if the holder has done all the law requires of him, to give the notice.”
    This rigid rule, by which indorsers are visited with all the consequences of notice, although they may actually prove the notice was never received, only proves the necessity of the court’s exacting of holders, that they shall have done all the law requires of them in giving notice, where notice is given by mail.
    The law requires the holder to use due diligence, to ascertain by inquiries the indorser’s place of residence, and if it can be found, to send it to his place of residence. It requires him to direct the notice through the mail to the indorser himself, or, if he directs it to an agent, to give the notice to the indorser, that the agent shall give the notice as early as the indorser could have got it, if the notice had been directed to the indorser himself.
    In both respects, the holder has not done all the law required of him to do, in order to fix upon the indorser all the consequences of notice, whether it arrived by due course of mail, or not. See Seioall v. Russell, 3 Wend. 276. 2 Camp. 246. 3 lb. 462, and other cases cited above. '
    The case is unaffected by Emerson’s having an agent at Natchez, as he might have had agents in Charleston, New Orleans, Paris, or London.
    
      
      Montgomery and Boyd, for defendant in error.
    The first position we will take is, that the notice should have been sent to the post-office nearest the residence of the defendant. But it is first necessary to fix in our minds the character or capacity in which Mr. Henderson is to be regarded. He states explicitly that the Commercial Bank, or himself as cashier of that bank, was agent for the holder of the bill to purchase bills, and that he indorsed the bill as agent to confer the title, and sent it to the holders, whose property it was. Mr. Henderson cannot with any propriety be regarded as a party to the bill; his indorsement was in effect the same as the indorsement of the plaintiffs. He cannot be regarded in the light of an agent to collect, within the meaning of those cases in. which it is decided that notices may be transmitted through an indefinite number of agents, who have made themselves parties to the bill by indorsement. In all those cases it will be seen that the agents were agents to collect before dishonor. Now Mr. Henderson was not an agent for collection before dishonor, nor did he forward to an agent to collect and account to him, but to the principal, where his ageqcy ended. In all the cases in which the principle has been recognized the agents retained their characters, and one was agent for another, and each agent was accountable back to the prior agent as his principal; and hence it was perfectly natural that the notice should travel back the same road the bill had gone.
    It was decided in England long since, that although an agent has the same right, with respect to bills of his principal he would have with his own, and might send them to his principal when dishonored; yet, if a foreign correspondent be in London with the bills, he ought not to send them to his agent to give notice, but should give the notice to the party who indorsed it to him. 4 Car. & Payne, 200.
    And in the United States it has been often decided that a holder of a note must send notice direct to an indorser. If he send it to an agent to serve notice, who does it, but not so early as it would have reached the indorser if sent direct, the indorser is discharged. Bailey on Bills, 268, 269; Tcdbot v. Clark, 
      8 Pick. R. 51; Seioall v. Bussell, 3 Wend. R. 276; United States v. Barker, 12 Wheat. R. 559; 4 Wash. C. C. R. 464; Mead v. Engs, 5 Cow. R. 303; 3 Gill. & Johns. 474.
    Several of these authorities will be found to be parallel cases; that in 12 Wheaton is as nearly so as can well be expected, and the judges appear to have no hesitation as to the right of the indorser to be discharged.
    Then did the notice reach Mr. Emerson as early as it would have done if .sent direct, for that is the test. For this is the case of a principal sending to his agent, and not of an agent forwarding notice to his principal. And we insist the notice did not arrive as soon as it would have done if sent direct. And this brings us back to the inquiry, where should the notice have been sent? We contend it should have been sent to South Reading, the place of defendant’s residence. There is no sufficient excuse given for not forwarding it to that place. The fact that, it was dated in Natchez is not even prima facie evidence that it was the place of his residence. No diligence was used to find out the~'9efendant’s residence. And the proof is clear that it could have been ascertained by inquiring at two of the principal hotels in the city of New York. But the notary gives but one reason for sending the notice to Natchez, and that was he did not know where he resided. This is no excuse, and therefore notice should have been sent to his place of residence. Tunstal v. Walker, 3 How. 259. Notice sent direct to his residence would have reached his agent in thirty-six hours ; but this notice did not reach the defendant until the eighteenth day after protest. This is a very important difference, as the agent was in thirty-six hours travel, and a notice sent to him might have enabled him, in the short space of three days, to visit New York, and make the necessary exertions to procure indemnity from the drawee; which would be altogether hopeless after notice was received at Natchez, and remitted back to New York, or South Reading. This illustrates the justice of the rule.
    But it is contended that as Emerson was in the regular habit of spending his winters in Natchez, and in the habit of getting his letters, &c., at the post-office there during the winter, that it was competent to send notices to him at that place. And that these facts bring the case within the principles recognized by this court in the case of Timstall v. Walker, 2 S. & M. 638.
    Conceding the point, we insist that it is plain that if Emerson had been a permanent resident citizen of Natchez, the notice was not sufficient to charge him. There is no evidence when Mr. Henderson received the notice. It is almost certain it arrived at Natchez on the third of March. The testimony of Mr. Bunce is not sufficient to justify the inference that it was taken from the post-office as early as it could have been by defendant, if directed to him. He asserts that himself, or some of the clerks, called at the post-office for letters for the bank and its officers, every day; but he cannot state that he or any other person in particular, called on the 3d, 4th, or 5th of March. This is by no means sufficient evidence that anybody called at the post-office. 4 Bingh. 715 ; 1 M. & P. 750.
    It is also clear that if the notice had been addressed to Emerson he could have gotten it on the 5th March, for on that day, at the latest, it must have been in the office, and ready for delivery. And according to the authorities before cited, if the indorser might have received the notice one day sooner than he did by the circuitous route it was sent, he is discharged.
   Mr. Justice Thacher

delivered the opinion of the court.

Upon an agreed case, the circuit court of Adams county gave judgment in favor of the defendant below in an action upon a bill of exchange, on which he was indorser. The bill Avas drawn by Sprague & Howell, in Natchez, Mississippi, on Joseph Hoxie & Co., of the city of New York, in favor of Noah Barlow, and indorsed by him, and by the defendant, Hubbard Emerson, and by Thomas Henderson, cashier, &c. Neither Thomas Henderson, the last indorser, nor the bank of which he Avas cashier, ever had any interest in the bill, but it had been purchased by him, in his capacity of agent of the plaintiff in error, and indorsed by him only because such indorsement was necessary to convey a legal title in it. The bill was duly protested for non-acceptance on the 17th day of February, 1837, and the notary, not knowing the residence of the drawers and indorsers, and it not appearing on the bill, inclosed notices of protest for them in a notice to Henderson, cashier, &c. directed to Natchez, Miss., and deposited them in the post-office in New York on the 18th day of February, 1837, before the closing of the southern mail of that day. The New York mail for the south of that 18th day of February, left that city at five o’clock, P. M., and arrived in Natchez on the 3d day of March following; and the letters of that mail were prepared for delivery at the post-office in Natchez, the same day. The letters addressed to Thomas Henderson, cashier, &c., were always placed in a box that the bank, of which he was cashier, had in the Natchez post-office, and it was the invariable custom of the bank to send daily to the post-office for letters. On the 6th day of March, 1837, Henderson delivered a clerk a notice of protest directed to the defendant, Emerson, which was inclosed in a notice of protest of the same note, and which was addressed to himself, and post-marked New York, February 18th, who delivered it to the defendant. It was also agreed that the defendant resided with his family in Massachusetts, and that his post-office in that state was South Reading, distant by mail route from New York, in point of time, thirty-four hours, but that he was in the annual habit of visiting Natchez in the autumn, and returning home in the spring, and that when absent from his residence in Massachusetts, he left there an agent fully authorized to conduct his business, and to receive his letters, and when absent from Natchez he also left there an agent to conduct his business. He was also well known in New York, and by inquiries at certain public places, his residence could have been ascertained.

The question in this case is whether due notice has been given to the indorser of the non-acceptance of the bill. The declaration states that notice was duly given to the defendant, the indorser, and when such is the averment in the declaration, legal notice, which implies notice in due time, must be proved. Blakely v. Grant, 6 Mass. R. 386. Not admitting that it was proper to have sent the notices inclosed to Henderson for their transmission by him, the facts of the case show that there is not proof strict enough that he sent notice seasonably to the indorser, Emerson. The New York mail of the 18th day of February, arrived in Natchez on the 3d day of March ; the notice to Henderson, inclosing the notices to the drawers and indorsers, was post-marked New York, February 18th, and the letters of Henderson were called for at the Natchez post-office daily. The strong presumption, from all these circumstances is, that Henderson received the notice on the 3d day of March, in which event, notice to Emerson on the 4th day of March was the latest period when it would have been binding on him. Fortner v. Parham and Gibson, 2 S. & M. 163. The giving notice to an indorser is an affirmative fact to be proved by a plaintiff. The rule in Downs v. Planters Bank, 1 S. & M. 277, declares that it devolves on the holder to prove that he has performed the conditions precedent, before he can compel the indorser to perform his contract. It was, then, necessary for the plaintiff in this case to have shown by Henderson or others the precise time when he did receive the notices for transmission. This should have been affirmatively shown. The fact of due notice cannot be left to inference or presumption. Chitty on Bills, 10th ed. 479. But, on the other hand, the fairest inference from the whole testimony leads to the belief that Henderson received the notices on the 3d day of March. The transmission to Emerson on the 6th day of March was, therefore, too late to bind him.

The judgment of the court below is affirmed.  