
    Farmers and Merchants Bank vs. Harris.
    1. The circuit judge charged the jury, that the testimony of the notary, (who stated that he had made enquiry of persons who, he supposed, knew the residence of an endorser, and got the best information he could obtain,) was not sufficient evidence of the requisite diligence to charge an endorser who had removed his residence: Held, that the judge invaded the province of the jury, in deciding upon the Sufficiency of the testimony.
    2. Where the court charged the jury, that when the distance between the residence of the holder and endorser is near and the communication frequent, in legal contemplation the holder would be presumed to have notice of the removal of an endorser: It is held, that this was trenching upon the province of the jury. This was a question of the weight of evidence to be decided by the jury.
    McOorkle & Holmes executed a note to E. P. Stuart or order, for the sum of $1273, payable and negotiable at the Farmers and Merchants Bank of Memphis, and due the 27th of October, 1838. This note was endorsed by W. Harris, and was discounted by the Memphis Bank. Harris resided at Randolph, on the Mississippi river, at the execution of the note; and in the month, July, 1838, he left the town of Randolph and fixed his residence at the town of Columbia, Maury county, Ten. When the note fell due, to wit, in October, 1838, it was protested for non-payment, and notice was sent to Randolph of the non-payment. At that time Harris resided in Columbia. Memphis, the location of the Bank, is about fifty miles below Randolph by water, both said towns being on that stream. They are distant from each, by land, about twenty-eight miles, and the communication is consequently frequent, and almost daily. ■
    Suit was instituted by the Bank in the circuit court of Tipton county against Harris the endorser, and the case was submitted to a jury on the proof, Judge Dunlap presiding. The notary at Memphis, stated that he had made enquiries of persons who, he supposed, were acquainted with Harris’s residence, and became satisfied, from the best information he could obtain, that Randolph was the place of the residence of Harris, and that he accordingly transmitted a notice to that place, of the non-payment of the note by the makers. The judge charged the jury, that the proof of Rose, the notary, was not sufficient proof of diligence, that he should have named the persons of whom he got his information, &c. He also charged the jury, that if the residences of the endorser and holder were near to each other, and the communication great, the holder would, in legal contemplation, be presumed to have notice of the removal of the endorser, and bound to give notice to the endorser at his true place of residence.
    The jury rendered a verdict in favor of the defendant. The Bank appealed in error to the supreme court.
    
      H. G. Smith, for the Bank.
    I. The declaration of the court to the jury, that the testimony of Rose, the notary, was not sufficient proof of the requisite diligence, involves a decision upon the sufficiency and weight of testimony. This, under our constitution, belongs to the jury. This was charging the jury with respect to a matter of fact, and is therefore erroneous. See article 6, sec. 9, of the Constitution of the State.
    2. The commercial intercourse between two places, is undoubtedly a circumstance from which a jury might, in connection with other circumstances, infer a knowledge of a change of residence. This fact of notice of change of residence belonged to the jury, and Avhen the judge charged the jury, that proximity of residence and frequency of communication, affected the holder with notice of change of residence, he erred, for which the judgment should be reversed.
    
      John W. Harris, for the defendant.
    The contract of endorser to a note or bill is conditional, and the holder, if he wishes to hold the endorser responsible, is required to use the strictest dilligence in making demand of the maker, and if he fails to pay, to give the endorser due notice of such failure. The endorser is entitled to strict notice. 20 John. Rep. 20. And the law requires that notice should be directed to his nearest post office, or to the one at which he is in the habit of transacting business. Barr, Street Co. vs. Marsh, 9 Yerger, 153. If the post office, nearest the endorser, is unknown to the holder of the note, he is bound to make enquiries for the office to which a notice should be sent. Bayley on Bills, 279. Due diligence must in general be used to find out, and merely enquiring at the house where a bill is payable, is not due diligence for finding out an endorser. Bayley on Bills, 280. Ignorance may excuse notice, but reasonable diligence must be used to obtain knowledge. Bayley on Bills, 280, in note 1. Nor is there any presumption in law, that the place where the bill was drawn is the place of the drawer’s residence, and if notice be sent there to him, and in fact he does not reside there, that is not sufficient, if no enquiry be made, to ascertain his place of residence. Bayley on Bills, 283: Chitty on Bills, 487, top- page.
    Defendant’s residence at the time of the protest of the note being in Columbia, Maury county, Tennessee, it was the duty of the holder of the note or the notary, to have addressed the notice to him at that place, and not to Randolph as was done. In order to excuse himself from not having done so, he must show by the clearest proof that he made diligent enquiry of such persons as were likely to know his residence; and if upon that diligent enquiry, made of the proper persons, he was informed that Randolph was his place of residence, and acting on that information, addressed the notice to Randolph, the defendant would be bound, otherwise not. Dunlap vs. Thompson Drennan, 5 Yerger, 67: Nichol Sf Hill vs. Bate, 7 Yerger. 305: Barr, Street ¿y- Co. vs. Marsh, 9 Yerger, 253: Marsh vs. Barr, Meigs’ Rep. 68: Davis vs. Williams, Peck’s Rep. 191.
    In the case decided in Meigs’ Rep. 68, it was in proof, that the notary made diligent enquiry for the residence of Marsh, and among others of the Cashier of the Bank in Nash’dlle, where the note was made- payable, the post master at Nashville, of whom, it might have been supposed, as correct information, as to Marsh’s residence, could be obtained as from any other persons. He also made en-quiry of one of the parties to the paper, who, it must be supposed, was very likely to know the residence of the other on the paper, and his nearest post office, (which enquiry if made in this case, •the information would have been obtained,) the result of which en-quiry was the conviction on the mind of the notary that Jackson, Tennessee, was the proper and correct address of Marsh. In this case, in Meigs’ Rep., the jury could not hesitate in coming to the conclusion, that the notary had used due diligence in finding out the nearest post office to Marsh, because the sources from which the information was gotten, as to his residence, were the most proper and natural.
    But in this case, although the notary says, he enquired of persons who, he supposed, could give the best information as to defendant’s residence, yet he does not inform the jury of whom he made the enquiry, so that they could be able to judge whether, in fact, he had used due diligence in ascertaining defendant’s residence. He does not say of whom he enquired. The persons of whom he sought the information, should have been made known to the jury, and then they would have been able to know, whether it was true or not, that he did enquire of those most likely to give the information. In the absence of such information they could not have found that due diligence had been used; and whether due diligence had been used is a question of fact for the jury.
   Reese, J.

delivered the opinion of the court.

The defendant was one of the endorsers of a note made payable at the Farmers and Merchants Bank of Memphis, and of which it became holder. At the time of his endorsement, in June, 1838, the defendant carried on business as a merchant, and was resident in the town of Randolph, which is situated upon the river Mississippi, about fifty-eight miles by water, and twenty-eight by land from the city of Memphis; and between those places there is much commercial and other intercourse and communication.— When the note fell due in October, 1838, the defendant resided in Columbia, Middle Tennessee, having removed in July, 1838. Notice of the protest for the non-payment of the note was sent by the notary, directed, through the mail, to the defendant, at the town of Randolph. The notary upon the trial, testified that “he made en-quiry of persons whom he supposed to be informed of the residence of Harris, (the best information he could obtain,) and learned that Randolph was his place of residence. That the information he received was the best he could obtain, and satisfied him that Randolph was the place of Harris’ residence.”

The portion of the charge of the circuit court excepted to, is,

1st. “That the testimony of Rose, the notary, was not sufficient proof of the diligence requisite; that it was necessary for him to name the persons of whom he made enquiry, in order that the jury might judge whether the enquiry had been made of the proper persons, and that the defendant might be able to prove the oath of the notary false.”

Sd. “That if the residence of the endorser and holder were near to each other, and frequent communication between the places or towns of their residence, the holdei's would in legal contemplation he presumed to have notice of the removal of the endorser, and bound to give notice at the true place of residence.”

We .think there is error in both these propositions; but the error consists not so much in the views presented by the court, if they could be considered as a commentary upon the facts to aid the jury in arriving at a just conclusion as in the assumption by the court to decide, itself, the matter of fact which should have been left to the jury.

If in the first proposition, the court had said that the testimony was less satisfactory, for the reasons stated, or would have been entitled to more weight, if the persons, from whom the enquiry was made, had been named, it would have been very proper. But he ought not to have said that the testimony was not sufficient.

In the second proposition, he might well have said that proximity of residence and frequency of inter-communication, as they increased the means of hearing of changes of residence, so they increased the probability that such changes, when they occurred, were in fact known, but he should not have said, that a party, under such circumstances, was affected with legal notice as to the knowledge of them. We, for these reasons, reverse the judgment.  