
    David S. Goodloe vs. Jesse Godley et al.
    The principle established in 6 g. & M. 255, that “if the holder of a note be ignorant of the place where the indorser resided at the time of protest, and cannot ascertain it after diligent inquiry, notice, sent to the place where the note bears date, will be sufficient,” affirmed.
    Banks of necessity carry on their business through the medium of agents, who bind the bank to the extent of their authority ; where, therefore, a bank has several agents, to whom separate and distinct duties are intrusted, notice to one of them in regard to a matter not pertaining to his duties cannot affect the bank.
    Knowledge, therefore, on the part of a clerk in a bank, of the residence of a party to negotiable paper protested by the bank, will not prevent the holder of the paper, in a suit against this party to it, from availing himself of the ignorance of the proper officer of the bank of the residence of the party.
    The holder of negotiable paper, on failure of the proper party to pay it, need not, in order to ascertain the residence of the other parties to the paper, for the purpose of giving them notice, make inquiry at any other point than where the paper is payable; inquiries at that point will constitute due diligence.
    Where the declaration upon a protested bill of exchange alleges demand and notice, proof of any matter in excuse of notice is admissible and sufficient.
    It is proof of sufficient demand of payment of a note payable at a bank, that the notary, after banking hours, and after the note had been handed to him as notary, made the demand, and was answered by the proper officer that no money had been deposited for its payment.
    Where a note is payable at a particular time at a bank, and indorsed to such • bank for collection, no specific demand is necessary. It is enough if the note be in bank on the day appointed for its payment.
    In error from the circuit court of Madison county; Hon. Robert C. Perry, judge.
    Jesse Godley & Co. sued David S. Goodloe, Jr. on a note made by Keenan & Goodloe for $622.66 to David S. Goodloe, jr., or order, payable ninety days after date, at the Branch of the Bank of the State of Alabama, and dated Tuscumbia, Aug. 15, 1848; indorsed, “Pay Jesse Godley & Co., or order. David S. Goodloe, Jr.”
    The declaration is in the usual form, alleging the presentation of the note at the bank, demand of payment, non-payment, and notice. The plea was non-assumpsit.
    On the trial, the plaintiff read the note sued on, and the indorsement; the deposition of Jonathan Lane, who deposed that “ on the sixteenth day of November, 1838, a note drawn by Keenan & Goodloe for $632.66, indorsed by D. S. Goodloe, Jr. and Jesse Godley, was handed him as notary public; that he protested it on that day, and after diligent inquiry for the makers and indorsers, having no positive information of the particular post-office of D. S. Goodloe, and from the fact that the note was dated at Tuscumbia, he was induced to direct the notice of the makers and first indorsers, Tuscumbia, Alabama, and to Jesse Godley, Philadelphia, Pa. All the notices were deposited in the post-office at Decatur on the day of protest, or in time for the first mail. The original note was presented by him at the counter of the Branch of the Bank of the State of Alabama at Decatur, for payment, after business hours of said bank had closed; and on presentation of said original note to the proper officer of said bank, on the 16th day of November, 1838, witness was informed by him, the proper officer, that no money had been deposited for that purpose, and therefore refused to pay it.”
    Plaintiff read a second deposition of the same witness, in which he deposes that “on the ldth day of November, 1838, a promissory note drawn by Keenan & Goodloej for $622.66, indorsed by D. S. Goodloe & Co., was handed me by the proper officer of the Branch of the Bank of the. State of Alabama at Decatur, as notary public. I protested the said note, as bound by law. On the day and year above mentioned the notice was sent to Keenan & Goodloe, Tuscumbia, Ala., the makers; D. S. Goodloe, indorser, Tuscumbia, Ala.; Jesse Godley & Co., Philadelphia, Pa. My reason for sending the notices as above stated, was from the information received from the cashier, and other officers of the bank, who are always required to.state where the notice should be sent. They were deposited in the post-office at Decatur in time to go by the first mail. I have no recollection of any other fact in relation to the above protest. I made inquiry of the cashier and other officers of the bank, and received the information before stated at the time I made the demand, and the payment was refused; and I presume that they, the officers of the bank, knew the proper post-office to direct to D. S. Goodloe, Jr., as they were the holders of the notes. Knows William Gregg; he was a clerk in the bank, and has no doubt if he was there, inquiry was made of him, as he generally gave directions as to notices while he remained there; does not know whether the officers of the bank made any inquiry in relation to the residence of the defendant or not; but the officers of the bank, the then holders, directed me to send the notices as before stated. Was acquainted with D. S. Goodloe, Sen., and other members of the family. D. S. Goodloe, Sen., lived at Tuscumbia.”
    It is not deemed necessary to set out the residue of the proof ’ at length.
    On the part of the indorser, Goodloe, it is proved that his place of residence and nearest post-office was not Tuscumbia, but La Grange, about ten miles from Tuscumbia; and several depositions were read to show that by inquiries at Tuscumbia, and of the makers of the note, and others, the notary might have learned that La Grange, and not Tuscumbia, was the proper post-office of Goodloe.
    The notary is proved to be a man of veracity and fidelity in the discharge of his official duties.
    At the instance of the plaintiffs below, the court gave the following instruction to the jury:
    “ If the jury believe, from the evidence, that the notary was ignorant of the place of residence of the indorser, and could not ascertain it after diligent inquiry, and that he sent notice to the place where the note bore date, this is sufficient to bind the indorser.” To which the defendant excepted.
    And at the instance of the defendant, as follows:
    “ 1. That in order to charge the defendant as indorser, it is incumbent on the plaintiff to prove that timely notice was given to the defendant of the non-payment of the note, if it could be done; or, if this conld not be done, the plaintiff must show that the holder has used due diligence to give such notice.
    “2. To constitute due diligence in this case, it must appear from-the evidence that the holder made inquiries of those persons of his acquaintance who were most likely to know the residence of the defendant, or where he was likely to be found, if such inquiries were practicable, and that as soon as the holder obtained the requisite information from such sources, he communicated the notice of non-payment to the defendant.
    
      “ 3. The opinion of the witness, as to what constituted diligent inquiry, is not evidence, but it is incumbent on the witness to state all the facts connected with such inquiry, from which the court and jury may determine whether such facts constitute a diligent inquiry or not.
    “6. It is incompetent for either party to discredit the statements of his own witness.”
    The following instructions, asked by defendant, were refused by the court:
    “ 4. The bank where the note was payable, and to which the note was sent for collection, was the holder of the note for that purpose, and the plaintiffs cannot avail themselves of ignorance of the defendant’s residence, as an excuse for the omission of actual notice, if it appears that the bank, through any of its officers, had knowledge of such residence.
    “5. If the declaration in this case avers that notice was given to the indorser, proof that diligent search was made for his residence, to excuse the omission of notice, will not support the averment; and unless the proof corresponds with the averment in this particular, the jury must find for the defendant.
    “ 8. It is not sufficient to charge the indorser in this case, that inquiries were made only where the note was payable.”
    The jury found a verdict for the plaintiffs, and the defendant moved to set it aside, and foi\a new trial, on the following grounds:
    “ 1. Because the verdict is contrary to the law and evidence of the case.
    
      “2. Because the court erred in its instruction to the jury on behalf of the plaintiff.
    
      “3. Because the court erred in refusing the instructions asked by the defendant.”
    Which motion was overruled; wherefore, and to the ruling of the court in admitting the first deposition of Jonathan Lane, the defendant excepted, and sued out this writ of error.
    
      D. Mayes, for plaintiff in error,
    Cited Story, Prom. Notes, 300, 301, 386, § 326; Wilcox v. Routh, 9 S. & M. 483; Paley onAg. 199; 4 Phil. Ev. (Cow. & H.) 30; 3 Camp. 262; Story on Bills, § 316, p. 370; Story, Prom. Notes, § 226; Harrison v. Crowder, 6 S. & M. 471; Colma v. Hunt, 2, S. & M. 227.
    
      A. H. Handy, for defendants in error,
    cited Hunt v. Nugent, 10 S. & M. 54S¿ Grah. New Trials, 498; 6 S. & M. 255; Robinson v. Hamilton, 4 Stew. <fc Port. 91; 7 How. 648 ; 2 Greenl. Ev. § 197, and cases cited; 5 Pick. 441; 5 S. & M. 317; 3 Cow. 252; 5 S. & M. 49; Story', Prom. Notes, § 354.
   Mr. Justice Clayton

delivered the opinion of the court.

This case was formerly in this court, and is reported in 6 S. & M. 225. It was then reversed, because of the refusal of the court to give the following charge at the instance of the plaintiff’s counsel: — “That if the holder of the note was ignorant of the place where the indorser resided at the time of protest, and could not ascertain it after diligent inquiry, notice sent to the place where the note bears date will be sufficient.”

Upon the present trial the plaintiff asked no instruction, but a repetition of the foregoing, which was granted. The defendant asked several instructions, a part of which were given, and a part refused.

We see no reason now to say, that the instruction given for the plaintiff is erroneous, as it precisely accords with our former decision in the case. The argument addressed to us on the point, would have been very appropriate before the jury, to show that the holder was not ignorant of the defendant’s residence, but it can have no application in the decision of the legal principle. In the same case it was decided, that “ what shall be deemed due diligence must be submitted to the jury under appropriate charges, where the question depends upon' the testimony of witnesses given before the jury.” That course was pursued in this case, and there is no such preponderance of evidence against the verdict as would authorize us to set it aside.

We shall proceed to consider those charges which were asked by the counsel of the defendant and refused by the court. The first is as follows: — “The bank where the note was payable, and to which the note was sent for collection, was the holder of the note for that purpose, and the plaintiffs cannot avail themselves of ignorance of the defendant’s residence, as an excuse for the omission of actual notice, if it appears that the bank, through any of its officers, had knowledge of such residence.” Banks, of necessity, carry on all their business through the medium of agents. The acts of their agents bind them to the extent of their authority. Each is confined to the sphere which is assigned to him. Where a bank has several agents, to whom separate and independent duties are intrusted, notice to one of them, in regard to a matter not pertaining to his duties, cannot affect the bank. It is the duty of the cashier or of the teller to superintend the collection of paper deposited in the bank for payment. It is the duty of the same officers to give information as to the residence of the indorsers. If the bank may be justly chargeable with notice to either of these officers, as to such residence, it cannot be so chargeable by the knowledge of, or the notice to, one of its clerks not intrusted with the duty of superintending such collections. The principle is a general one, that the conduct of the agent only binds his employer, when he acts within the limits of the power granted to him, and with reference to the subject-matter of the agency. Fortner v. Parham, 2 S. & M. 164; Commercial Bank of Natchez v. Wilkins, 6 How. 220; Wilcox v. Routh, 9 S. & M. 476. We think, therefore, there was no error in refusing this charge.

The next charge, the refusal of which is excepted to, is in these words : “ It is not sufficient to charge the indorser in this case, that inquiries were only made where the note was payable.” This refusal is justified by the case of Hunt v. Nugent, 10 S. & M. 548. That case is also an authority for the sufficiency of notice in this. It says : “The information the notary received was direct and positive. It was given to him at the place where it was most natural for him to inquire, the place where the note was payable. He had no reason to doubt but that the information he received was correct, because it was given without hesitation, not as a mere opinion. He was put at rest upon the subject.” So in this case, the notary states, “he received the information as to the residence of Goodloe ' from the cashier and other officers of the bank, and he presumed they knew his residence.” See, also, Farmers and Merchants Bank v. Eddings, 4 Hum. 521; Spencer v. Bank of Salina, 3 Hill, 520.

The other charge asked and refused is as follows: “ If the declaration avers that notice was given to the indorser, proof that diligent search was made for his residence to excuse the omission of notice will not support the averment, and unless the proof corresponds with the averment in this particular, the jury must find for the defendant.” On this point, the rule is thus laid down by Greenleaf, in his Treatise on Evidence, vol. 2, p. 162: “ Where matter in excuse for want of demand and notice is relied upon, it is usual to declare as if there had been due presentment and notice. Sufficient matter in excuse is, in legal effect, equivalent to demand and notice.” The same doctrine is in substance stated by Chitty, Bills, 591.

In regard to the demand, we think that it was sufficient in this case. The notary says he made the demand of the bank after banking hours, and after the note had been handed to him as notary, that he was answered by the proper officer that no money had been deposited for its payment. That this was a sufficient demand, is established by the case of the Commercial and Rail Road Bank v. Hamer, 7 How. 448. Indeed, where a note is payable at a particular time at a bank, and indorsed to such bank for collection, no specific demand is necessary. It is enough if the note be in bank on the day appointed for its payment. State Bank v. Napier, 6 Hum. 270; Bank U. S. v. Carneal, 2 Peters, 543; Cohea v. Hunt et al., 2 S. & M. 227. This case is not like that of Harrison v. Crowder, 6 S. & M. 471. There the demand was made before the close of banking hours. The court charged the jury, “ that if the demand were made at some reasonable or convenient time, before the doors were closed on the third day of grace, it was sufficient,” This court reversed the judgment, because this charge was too indefinite; but the decision does not apply in this case. The demand here was not made until the close of banking hours, and the notary was informed that no funds had been deposited to pay it.

On the whole, the judgment is affirmed.  