
    John Gist v. G. C. Lybrand.
    When the maker of a note removes from the state where he resided at the time of making it, into another state, the holder is not bound to make a demand of the maker to charge the indorser.
    Indorser resided in the county, nine miles from the city, and spent part of his time in the city, receiving letters and messages at a particular place in tho route of a letter carrier, and proof that notice of non-payment by the maker was put into tho post-office of the city, directed to the indorser. Verdict for the plaintiff; new trial denied, though no proof given by the plaintiff that the city post-office was the nearest to the defendant.
    This cause was adjourued from the county of Knox, and came up for decision on a motion for a now trial, made on behalf of the defendant.
    It was an action upon the case against the defendant, as the indorser of a promissory note, made to Lybrand by Richard Ware, dated Philadelphia, August 4, 1818, payable twelve months after date, and indorsed by the defendant to the plaintiff before it became due.
    One count aveiwed that when the note became payable, diligent search was made for Ware to demand payment of him, but he could not be found, and thereupon the said note was protested for nonpayment, and notice thereof to defendant. Another count stated that after the indorsement, and before the note became payable, Ware secretly ^absconded from Philadelphia, and fled to parts unknown; and when the note became due, diligent inquiry was made for Ware to demand payment of him, but he could not be found, of which the defendant had notice.
    The defendant pleaded the general issue.
    Upon tho trial the defendant’s counsel objected to the admissibility of the evidence offered by the plaintiff to excuse the want of a personal demand upon Ware, the drawer, and also to the evidence offered by the plaintiff to prove notice of non-payment to the defendant, the indorser. But these objections' were overruled by the court, and it was for the alleged mistake of the court, in these particulars, that a new trial was claimed.
    1. As to the demand, the evidence offered by the plaintiff was the following:
    
      
      First. John Warnoek deposed that he was well acquainted with Ware; prior to August, 1819, deponent was deputized to serve a warrant on Ware for a debt of ninety-six dollars and seventy-eight cents; went to Ware’s house in Philadelphia; Ware was not to be seen ; deponent called to him, and Ware replied that he was not to be seen by any person on business. Shortly after, this deponent heard it publicly said that Ware had absconded, and had deserted his place of residence to avoid his creditors, and had gone to the college, in Yirginia. Deponent afterward saw Ware casually in Philadelphia, and made demand of payment of said debt, for which he had the warrant; Ware stated he was unable to pay, and before deponent could get out process, Ware suddenly left the city ; has recently understood he (Ware) was in New York.
    
      Second. William Bozarth was acquainted with Ware, who was a house-carpenter, and kept an iron-mongery store in Market street, above Ninth, Philadelphia. Some time in the year 1818 called at this store, and inquired for Ware, and the person in the store informed him that Ware had gone away, he did not know where, but believed to the South ; shortly after heard, as a matter of common report, that Ware had absconded, and different statements were made as to the place he had gone to. Some time in 1819 or 1820, deponent met Ware in the street, Ware could have been then but a short time in the city; has not since seen *him in the [803-city ; has heard that he passed through the city within two years, on his way to New York; thinks it was during the year 1818 that Ware left the city.
    
      Third. Peter L. Berry was well acquainted with Ware, and being his bail, was very desirous of finding him before he left the city, but was unable to do so. Ware left the city clandestinely and deponent considered him,as having absconded; does not exactly recollect the time Ware went away; thinks it was about ten years ago, July, 1827. Deponent always believed he left Philadelphia, and went away to avoid his creditors.
    
      Fourth. Jacob Rheim was acquainted with Ware whilst he resided in Philadelphia. On January 5, 1819, Ware was still residing in the city, and left it in the spring or summer following, to go to Yirginia. He has been absent from the city ever since, except that he was once seen by the deponent, a year or two afterward, in the city. [A written notice is exhibited in the deposition of this witness, which he states to be in Ware’s handwriting, and signed by Ware. It is dated April 24, 1819, at Chester, in Delaware county, and is a notice by Ware to his creditors, that he ha3 applied to the common pleas of Delaware county for the benefit of the insolvent law, and that Monday, May 10, 1819, was the day appointed for the hearing of the petition.] Deponent was informed by Ware, that it was his intention to go to Virginia, to assist in building Jefferson College, and that the job would detain him several years.
    
      Fifth. John C. Evans. Ware left Philadelphia some time after the beginning of May, and before the month of August, 1819.
    2. As to notice to Lybrand, the indorser, of non-payment, the evidence is:
    
      First. Joseph S. Randall, in August, 1819, was a clerk to Peter Lohra, notary public, in Philadelphia. On August 7,1819 (as deponent knows from a memorandum made by him at the time), by the direction of Mr. Lohra, he put into the post-office of Philadelphia separate notices for Richard Ware and George C. Lybrand, of protest of the note mentioned in the declaration. [The note and protest are identified by witness, and exhibited in his deposition.]
    
      *Second. John C. Evans. Lybrand left Philadelphia in the year of 1818, or beginning of 1819, deponent thinks the latter, and has continued to reside at a distance from Philadelphia since. When in Philadelphia, he lived, as deponent believes, with his mother, in Eighth street.
    
      Third. George Masters. Prior to August, or September, 1818, Lybrand resided in Market above Ninth street, Philadelphia, whore he kept a hardware store. On May 7, 1818, deponent went to live on a place belonging to said Lybrand, in Roxboro township, about nine miles from Philadelphia, as a tenant of Lybrand’s. In the month of August or September of that year, Lybrand came to live on the farm, and continued to live there two or three years. He followed no business there, was frequently in the city, and directed deponent if he should have occasion to see him, during his absence, to call for him at his mother’s in Eighth street; deponent frequently saw him at his mother’s; Lybrand did not put up in the city at any other place, and there deponent was frequently ■directed to call on business for Lybrand; was in the habit of bringing things from that place to Lybrand, and on one occasion, particularly, he recollected carrying a note or letter to him.
    
      
      Fourth. David Watson. (Two depositions of this witness.) First. Is, and has been, since 1810, a letter-carrier for a district in the city of Philadelphia; several years ago, was in the habit of receiving letters from the post-office addressed to George C. Lybrand; these letters were left with Lybrand’s mother, in North Eighth street, Philadelphia; this practice of leaving Lybrand’s letters with his mother continued for two or three years ; for several years last passed, deponent does not recollect having received any letters for Lybrand; during the time he was in the habit of carrying Lybrand’s letters to his mother’s, heard no complaint of any miscarriage ; from the practice of the post-office, any letters addressed to Lybrand would have been carried to his mother’s ; does not recollect ever having seen Lybrand.
    
      Second deposition. In the year_1818, deponent carried letters addressed to George C. Lybrand to the store which Lybrand then kept in Market street; does not recollect of carrying any letters to Lybrand, previously to April, 1818; ^deponent can not state at what time Lybrand left the store, in Market street, but afterward deponent was in the habit of carrying letters for him to his mother’s, in Eighth street; after some time deponent understood he had left Philadelphia, and from that time, has no recollection of any letter being left for him in the post-office; whatever letters came at any time for him after he left the store, were taken to his mother’s, and there left; deponent recollects the person of George 0. Lybrand; deponent recollects after Lybrand left the store, his mother’s was the place pointed out by Lybrand, at which letters to him wore to be left, but can not state this positively; can not state the year Lybrand left Philadelphia.
    W. W. Irwin, for defendant:
    Two questions present themselves for the-decision of the court:
    1. Was the demand of payment such as to enable the plaintiff to recover ?
    2. Was notice given by the plaintiff to the defendant of that demand ?
    The drawer of a bill and the indorser of a note are responsible only after a default of the maker or acceptor, and the holder must first demand payment of him, or use due diligence to demand it, before he can resort to the drawer or indorser. 2 Johns. Cas. 75; 9 Johns. 121; 12 Johns. 423; 4 Mass. 341; Chitty on Bills, 260.
    
      To prove a demand the plaintiff gave in evidence the deposition of Joseph S. Randall, who testifies that on the 7th or 8th day of August, 1819, he put into the post-office, in the city of Philadelphia, separate notices for Richard Ware and George C. Lybrand, of protest of a certain note, here exhibited by the deponent, and marked with his initials.
    The protest of promissory note, or inland bill of exchange, is not necessary, and is no evidence of the facts stated in it. 20 Johns. 383; 6 Wheat. 140, 572. This court, in the case of the Bank of Chillicothe v. Kerr’s indorsers, made a similar decision, and upon the trial of this cause rejected the protest, which was not given in evidence to the jury.
    *The only evidence remaining is that the witness put notices of protest of a certain note, the one in suit, in the post-office in Philadelphia. As the protest was not necessary, and is-not evidence of the facts contained in it, there was no proof who-held this note, or whose it was when it became due, and there is no proof of a demand, or even an inquiry after Ware, the maker, on the day the note fell due.
    As an excuse for this negligence, the plaintiff offered proof that Ware left Philadelphia before the note was due, and that he had-actually absconded, or gone to the State of Virginia.
    Upon examination it will be found the only evidence of Ware’s-leaving the city was from hearsay. It was reported, but when, or by whom, is not known, that he had absconded. Hearsay is admitted in but few cases, and this is not one of that character. His neighbors could have proved facts, from which inferences might be drawn with certainty. For instance, Stuart, who is named as-giving information to Berry, could have, under oath, testified to facts. But as it is, the reports may or may not be true. They want the sanction of an oath ! The rule requiring the holder of the note to make inquiry for the maker is founded in good sense, and obviates all the uncertainty and inconvenience arising out of hearsay testimony.
    Had the holder of the note made inquiry for Ware, at his last place of residence in the city, on the day the note became due, or had he made'inquiry for him of his neighbors and acquaintances, proof of that inquiry, and that he co uld not be found, would have furnished something like certain data for the court; but instead-of this the plaintiff rests his case on hearsay.
    
      It is necessary to prove the indorsement of the note by the defendant; a demand on the maker; a notice to the indorser. Why, may I ask, is it not equally proper to prove the indorsement and the notice by hearsay, as well as to prove by hearsay that the maker had absconded, which is equivalent to a demand. Hearsay, and unknown from what quarter it came, and whether creditable or not we can not tell, is a species of testimony too uncertain in its character to rest our rights upon. In cases of boundary, pedigree, etc., it is received from the necessity of the case, but here no such necessity exists.
    ^Notice was given by Ware to his creditors that on the 10th of May he should take the benefit of the insolvent act, at Chester, and he spoke of his intention to go to the college in Yirginia. One of the witnesses says he went there after taking the benefit of the act. His acts and declarations of his intentions are irreconcilable to the hearsay reports of his leaving the city clandestinely, and as the plaintiff is bound to make clear his excuse for omitting to make the demand, the testimony offered falls far short of producing that effect. The weight of evidence is that he left Philadelphia for Jefferson College, to be employed there, and his intention of going there was spoken of by himself, and appears to have been known to several of the witnesses.
    If he merely removed, the plaintiff ought to have presented the note for payment to him, or if going beyond the state changes the character of the obligations between the indorser and the indorsee, so as to make the place of demand local, then a demand ought to have been made in Philadelphia.
    If the maker has removed out of the state, the holder is excused from seeking him further than his last place of residence. Sanger v. Stimpson, 8 Mass.; 5 Binney, 542; Thompson v. Kitchem, 4 Johns. 285.
    When the maker of a note removed to Canada, from Albany, a demand at Albany was deemed sufficient. 14 Johns. 117; Chitty on Bills, 180, 181. In Ohitty, it is laid down as a rule (180) that, “ If the drawee of a bill can not be found at the place where the bill states him to reside, and it appear that he never lived there, or has absconded, the bill is to be considered as dishonored, but if he have only removed, it is incumbent on the holder to endeavor to find out to what place he has removed, and to make the presentment there, and he should in all cases make every possible inquiry after the drawee, and if it be in his power, present the bill to him.”
    Here no inquiry was made for the maker of the note, and no presentment made at the last place of residence of Ware, for payment.
    It may be said that it was useless to make a demand of payment at the last residence of Ware, or to make inquiry for him, if he had actually gone to Virginia. So it may be said of a note payable at a bank, or at any particular Aplace. If the maker has made no provisions for its payment, proof of that fact will not suffice ; but there must be proof of a demand, or of acts equivalent to it.
    The relationship between an indorser and an indorsee is defined by legal rules, and it is not the province of the court to inquire into the wisdom of those rules, and to make changes operating upon past transactions.
    The notice in this case is also deficient. The proof is, that notice of protest of the note was put in the post-office in Philadelphia on the 7th or 8th of August, 1819, directed to George C. Lybrand.
    If he lived in the city the notice ought to have been served on him personally; if removed, the notice ought to have been directed to him at his place'of residence. Holliday v. Martinell, 20 Johns. 168. And in the case of Snider v. Utica Bank, 20 Johns. 383, the court, in speaking of notice, say, “ It is a condition precedent, and that strict proof is required. The law has allowed the indorser his protection, and nothing short of clear proof shall subject him to liability.”
    After Lybrand left the city, there is no proof that he had any transactions in the post-office at that place, or that he had directed his letters to be taken to his mother’s, and if he did, it would make no difference, unless there is proof that the notice was actually taken there. Ireland v. Rip, 11 Johns. 231; 10 Johns. 490. Whether there was or was not a post-office at Roxboro is a matter for the plaintiff to establish. If there was a post-office there, the notice ought to have been directed to that place. If none, then to the post-office nearest to that placed Upon this subject there is no proof; nor is there any proof that the post-office in Philadelphia was the place at which the defendant received his letters, when the' note became due. Upon this subject, suspicion or slight presumption will not do, the law requires clear and uuoquivocel testimony.
    
      H. Stanbert, for plaintiff:
    The questions understood to be reserved in this case are, whether the court erred in admitting the evidence offered by the plaintiff, upon the trial, to excuse a demand upon Ware, the maker of the note, and to show notice of its non-payment to Lybrand, the indorsor.
    
      *First. As to the evidence in excuse of a demand. The note fell due on August 7, 1819, which was the last day of grace. It was dated at Philadelphia, and not made payable at any particular place. The evidence shows that, at the making of the note, Ware resided in Philadelphia, but prior to its maturity removed to the State of Virginia.
    Under these circumstances, a personal demand upon Ware was not necessary. In England, when the maker has removed out of the kingdom, no demand is necessary, but the indorser stands committed. Per Mr. Justice Johnson, in Magruder v. Bank of Washington, 9 Wheat. 598. In the United States, it has been repeatedly decided that a removal beyond the limits of a particular state, although it be to an adjoining one, is tantamount to going beyond seas or out of the kingdom.
    It has been so held by this court in respect to the operation of the statute of limitations.
    Without looking further to analogies, we have the highest authority that the very case of the removal of the maker of a promissory note beyond the state, is equivalent to going beyqnd seas, and excuses a demand. McGruder v. Bank of Washington, ut sup.
    
    In that case, the court observe that “ reason and convenience are in favor of sustaining the doctrine that such a removal is an excuse from actual demand. Precision and certainty are often of more importance to the rules of law than their abstract justice. On this point there is no other rule that can be laid down, which will not leave too much latitude as to place and distance.” Anderson v. Drake, 14 Johns. 114, is to the same effect.
    But it may be contended that although the removal of Ware excused the necessity of a personal demand, yet the note should at least have been presented at his.former residence in Philadelphia, and inquiry there have been made for him. To what purpose? The evidence shows that the presentment of the note at his former residence would have been useless; there was no one at that place to answer to the demand. And why the necessity or propriety of inquiring, when the facts show that if the inquiry had been sue* cessful, the holder of the note need not to have followed him to the place of his removal. The object of inquiry is to direct the *holder to the place where the maker may be found, for the purpose of a personal demand, and it'is merely useless, when, from the situation of the matter, a personal demand is unnecessary.
    It will be found upon examination that the case in Wheaton, above referred to, fully sanctions this position. There, when the note was made, the maker was a housekeeper in the District of Columbia. Ten days before it fell due, he removed out of the district about nine miles, to a place in the State of Maryland. A notary went to his last place of residence in the district, in order thereto present the note and demand payment, and not finding him there, and being ignorant of his then place of residence, returned the note under protest. There was no evidence that any search or a single inquiry was made for his place of removal. If he had removed to another place within the district, this sort of diligence would not have excused a personal demand. The mere circumstance of going to the maker’s house and not finding him there, was of no moment. The court do not take it into the account in holding the indorser, in that case, liable; but his liability is made to result purely from the removal of the maker to another state, without reference to any greater or less degree of diligence or inquiry.
    In the principal case, there are other circumstances besides the removal of the maker beyond the state, which makes it a stronger case to excuse, demand, or inquiry, than that in Wheaton. It is said by the court, in that case, that “ the circumstances of his (the maker’s) removal had nothing in them to sanction its being construed into an act of absconding.” The circumstances attending the maker’s removal, in this case, have everything in them to warrant that construction. It is proven by the witnesses that in 1819, Ware’s circumstances began to fail. In April of that year, he applied lor the benefit of the insolvent law. He secrets himself from the pursuit of his creditors ; shuts himself up in his house, and refuses to be seen upon business; and finally leaves the state before the month of August of that year in a secret manner, without making any provision for the payment of his debts, and with, every mark of concealment from his creditors.
    *The only reason that can be imagined for the presentment of the note, at the last residence of the maker within the state, ia founded on the presumption, that he has there left funds for its payment. Here that reason, however it might weigh in an innocent removal, has no application. There is no room for the presumption that Ware had left funds for the payment of this note, when it is shown that the very object of his removal was to avoid the payment of his debts.
    In England, to use the language of the Supreme Court of the United States in the case above cited, if the maker of the note abscond, the indorser stands committed. Bailey on Bills, 68.
    In the case of Duncan v. McCullough, 4 Serg. & Rawle, 480, Ch. J. Tilghman holds, that if it be proved that the maker had absconded and was not to be found, when the note fell due, a demand of payment would be dispensed with. A presentment of the note, at his last residence, is not stated to be necessary.
    In Putnam et al. v. Sullivan et al., 4 Mass. 45, the maker had absconded before the note was due. There was no evidence of any regular demand, no presentment at his last residence, nor any pretense of inquiry, or search.for him. The court held the indorser liable.
    The principles deducible from these cases may be readily applied ■to the principal case. The removal of Ware beyond the state, excused a personal demand, and of course the necessity of inquiry. The manner of his removal disposes of all objection to the want of ■presentment of the note, at his residence within the state.
    As to the notice of non-payment, the objection relied upon, is to the manner of that notice. It is very clear, upon the evidence, that, at the maturity of the note, .Lybrand resided about nine miles out of the city. If he had continued to reside in the city at that time, this mode of giving notice would, beyond all question, have been proper. It is generally true that when the parties reside in the same place, a personal notice is necessary; but if there be a letter carrier, or penny post, at the place, and the party entitled to notice reside within his limits, then a notice left at the post-office is sufficient. This mode of giving notice is, under such circumstances, the most certain and convenient. The notice is *not left at the post-office to abide the casual inquiry of the party, but it is immediately forwarded to him, and in effect is personally served. No proof need be made that any particular notice or letter has been carried to him by the carrier, for where the general practice is established, it is presumed that every letter left at the post-office, reaches its destination by the accustomed channel of communication. Stephen B. Mum v. Baldwin et al., 6 Mass. 317.
    Notice of the dishonor of a bill, sent by the two-penny post, is sufficient, where the parties live within its limits, whether near, or at a distance from each other. Chitty on Bills, 6 Amer. ed. 222, and cases there cited; Bank of Columbia v. Lawrence, 1 Peters, 578.
    But at the time of putting the notice into the post-office, Lybrand resided upon his farm, nine miles out of the city. It was not incumbent upon the holder, under such circumstances, to send a special messenger to serve the notice upon him, but it was his duty to select that mode of conveyance, by post, which proper inquiry would show to be the best for transmitting the notice. And under the circumstances of this case, as they appear in the evidence, what better mode, next to sending a special messenger, could have been adopted than that pursued by the notary? In the first place, it is to be remarked that there is no evidence of any post-offico nearer to Lybrand than the Philadelphia office. He lived in the country, and as the evidence does not show it, the court can not presume that there was an office more convenient to him. If the Philadelphia case had been presented with this aspect alone, in what would it be defective? Sending a notice to the post-office nearest the party is clearly good. But had it been made -to appear that there was an office nearer to the residence of Lybrand, how would the case then stand ? The holder might safely direct the notice to that, because the nearest office. A party may, however, be so situated, that notice directed to him at any one of several places may answer. Per Mr. Justice Thompson, Bank of Columbia v. Lawrence, 1 Peters, 582.
    Notice need not be sent to the nearest post-office, if a party be in the habit of receiving his letters at a more 'distant one. 1 Peters, ut svp.
    
    *In Reed v. Paine, 16 Johns. 218, the notice was sent to a post-office, five miles from the defendant, at which he usually received his letters. It was proved that there was an office nearer to him, but the court held the notice sufficient.
    This branch of our case is, upon the evidence, brought to a single alternative. Either this notice put in an office at which the defendant was accustomed to hold his correspondence, and, so far as appears, the nearest to his residence, is sufficient, or it was the duty of the holder to employ a special messenger. And where are the peculiar circumstances in this case, which require that extraordinary mode of conveyance. It is seen that courts do-not demand it, except under a pressing necessity, and for obvious reasons. For it would assuredly very much embarrass the circulation of negotiable paper. It is suporadding a risk not incident to the accustomed channel of communication, and other difficulties which would be found to be of great practical inconvenience.
   By the Court:

We all concur in opinion with the Supreme Court of the United States upon the first point in this case. In the case of Magruder v. The Bank of Washington, cited by the plaintiff’s counsel, they have settled that the removal of the maker of the note, after it was made, and before its maturity, into a different state, from that where he resided when the note was made, excuses the holder from making actual demand of payment from the maker. Whether a demand should be made at any other place, is not made a point or adjudicated upon in that case. But it seems to us a clear consequence of the decision that such demand is unnecessary. The fact of removal commits the indorser, and dispenses with all demand, unless a particular place be appointed for the payment of the note, in the note itself. In this case, the evidence to prove the removal was admissible, and the jury found the fact of the removal. The verdict can not be disturbed on this point.

Second. The second ground urged for a new trial ,is, that the testimony received to prove that notice was given to the defendant, of the non-payment of the note, was not admissible for that purpose. It is fully proved that the defendant ^resided a part of his time in the country, nine miles from the city, and a part at his mother’s, in the city; but transacted no regular business at either place. Notice of the protest was put into the post-office in the city, from whence a letter carrier distributed letters, who testified that he had carried letters to Lybrand from the post-office. The proof is also clear that Lybrand had directed letters and other matters of business, to be left for him at his-mother’s. There is no evidence in this case, whether there was a post-office nearer to his country residence than that of the city, and the counsel for both parties contend that this omission is in their favor. But, as the question is presented to us, we do not consider the fact very material. All the evidence received, was ■properly admissible. Its sufficiency to charge the defendant might ■depend upon the facts. Proof that there was a nearer post-office, ■would have been a sufficient answer to it before a jury. But this, instead of rendering it originally inadmissible, would be defeating it by counter proof. Its operative effect, not its admissibility, depended upon that fact. And its operative effect, too, would depend entirely upon the light in which the other facts might be considered by the jury. Should they be satisfied from the testimony that the notice actually reached the defendant, or that he ■was in the city, at the time the notice was put in the post-office, and receiving letters by the carrier, the fact of a nearer post-office ■would be considered wholly immaterial. It is, therefore, very clear that the testimony was properly admitted. Its effect is not .now before us, and it is unnecessary to express any opinion •upon it.

New trial refused, and judgment on the verdict.  