
    Warren Ayrault, plaintiff and respondent, vs. The Pacific Bank, defendants and appellants.
    1. Where the holder of promissory notes, on leaving them at a bank for collection informs the discount clerk of the residence and place of business of the maker, he does all that can be required of him; and if the bank undertakes to have the notes properly presented for payment and fails to do so, it is liable 1 to the holder for such neglect.
    2. A request to a bank to have notes “ protested,” if not paid, will not limit the liability of the bank, in case of negligence. By common usage, particularly in regard to promissory notes, in commercial dealings, “protesting,” has come to include.taking all the necessary steps to charge an indorser.
    3. So, also, depositing a note for collection does not imply merely the receipt of the money, if paid by the maker, but includes the taking of all such steps as are necessary to charge an indorser.
    4. Merely employing a notary, for the purpose of making a demand, does not discharge the party undertaking the collection qf a note, from the obligation of procuring a proper presentment, and notice in case of non-payment. No custom can control such a positive and universal rule of law.
    
      6. Although a bank is not bound to contract to present a note for payment, when due, or may limit its liability, or make its contract in any way it thinks proper, yet if it does enter into an agreement to present a note when due, it is responsible for the breach of it, as such, and not for a failure to discharge a public duty.
    6. An action for such breach of contract, brought by an assignee, is not liable to the objection that the claim, being for a tort, is not assignable.
    7. Such objection, being merely one of form, as to the want of proper persons as plaintiffs, is waived by not being set up by answer or demurrer.
    8. The obligation, of a bank undertaking to collect a note, is not an absolute one that the note shall be demanded of the maker when due, but merely that the bank shall use due diligence to charge the indorsers by demand and notice; and whatever would be due diligence on the part of the holder would be due diligence on the part of the bank.
    9. If the person leaving notes at a bank, in behalf of the holder, for collection, says that he does not know where the maker lives, and the notary exercises such diligence, in ascertaining his residence, as is required in common and ordinary business transactions, to charge the indorsers, the bank is not liable for his failure to demand payment of the maker and give notice to the indorsers.
    10. Where one of the holders of a note, on leaving it at a bank for collection, in answer to an inquiry of the discount clerk as to the place of residence of the makers, replies that he does not know where he resides, it is the duty of the clerk to inquire of the other holder, where such residence is. It is, therefore, proper to leave it to the jury to say whether his omission to do so is or is not consistent with due diligence; instead of instructing them, peremptorily, as matter of law, that an omission or refusal by one of the holders of a note to state where the maker’s residence is, relieves the bank of all obligation to ask the other, in the course of its inquiry,
    11. In such a case it is entirely a question of fact for the jury, whether an inquiry of the indorsers would have tended to inform the bank of the residence of the makers, and was an act of proper diligence for that purpose. The mere fact that there was no evidence in the case that the indorsers knew such residence, is not sufficient to show that all inquiry of them would have been useless.
    12. A want of actual demand being shown, this makes out, prima facie, a case of negligence. It is for the defendants to show due diligence; and if any natural source of intelligence appears in the case, they are bound to show that they applied to it in vain.
    13. The real question, in such a case, is, whether the defendants performed their contract by using, with the information they possessed, due diligence, by themselves or their agents, to present the notes, when due, to the makers for payment, and not whether the notary, who was merely one of such agents, had, with the information he possessed, used such diligence.
    (Before Robertson, Ch. J., and Barbour and Garvin, JJ.)
    Heard October —, 1868;
    decided December 31, 1868.)
    
      This action was brought to recover damages from the defendants for their neglect to demand from the maker of two promissory notes (deposited with them for collection by the plaintiff’s firm, consisting of himself and his brother George Ayrault,) payment thereof, at their maturity, whereby the indorsers of such notes (Ryan & Wehman) were discharged. The maker of such notes was one William Konz, (a butcher,) residing and doing business at the time of the maturity of' such notes in West Thirty-ninth street (No. 246) between Ninth and Tenth avenues, in the city of New York. They were payable to the order of the maker, and indorsed for his accommodation by Ryan & Wehman, and had been delivered to the plaintiff’s firm to secure the price of chattels bought from it by the maker. The plaintiff ’s brother (George Ayrault) had kept an account with the defendants in his own name for several years previously, and continued it in that form, after he took the plaintiff into partnership, and kept the account of the firm in the same name at the time of the deposit of such notes. ■ They were deposited by one of the plaintiff’s firm with the defendants for collection, the day before the first note became due. (February 3, 1859.) At the time of such deposit, the maker’s signature being illegible, the discount clerk who received such notes, wrote above it his name in pencil legibly. The maker’s name was not in the New York Directory, but his residence was there given as that of one William Konc. The indorsers of such notes did business on the Ninth avenue, (No. 430;) both lived near that place, and their places of business and residence were in the New York Directory. Both notes remained unpaid at three o’clock of the days on which they respectively became due, and each was on those respective days delivered by the defendants, according to their usual practice and the custom of banks in the city of New York, to a notary public (R. 0. Fellowes, Esq.) to be protested. He had previously sent notices of protest of the other'notes to the plaintiff’s firm, directed to a certain place in New York, (44th street, "Washington Drove Yard,) but not finding the maker’s name in the Hew York Directory, inquired of the defendants’ cashier where the holder lived, and was told, “in Poughkeepsie.” After finding the indorser’s place oí business closed, without demanding payment of the notes, he sent notice of non-payment to the former. He received the second note three days before it was due; on finding three persons -of tire name of “ Ayrault,” in the directory, and not knowing which was the holder of the note, he pursued the like course with it, without demanding payment of the maker or making any efforts to find him.
    The complaint, after setting forth the making, indorsement and delivery of the notes in question to the plaintiff’s firm, alleged that the latter deposited them with defendants for collection, and they so received the same, and “undertook the collection thereof,” and “further undertook and it was their duty to demand or cause to be demanded payment of said notes” from said maker, when they became due, “ and, in case payment was not made, duly to notify the indorsersbut that the defendants in violation of their “duty and undertaking” by “ gross carelessness and negligence, neglected to demand payment of such notes of the maker, or cause the same to be demanded, and no demand was made of such maker when such notes became due, through gross carelessness and negligence of the defendants, whereby such indorsers were discharged.” It also set forth an assignment or release by the plaintiff’s brother and partner, (George Ayrault,) to the plaintiff of his interest in the claim sued upon.
    The answer set up as a defense that the plaintiff at the time of depositing “ the notes in the bank, did not give the defendants any information as to the residence of the maker, or any instruction as to the course to be adopted in order to present such notes to him for payment, but on being asked for such information and instruction, wholly failed and neglected to give the same; and that “ the defendants used all due diligence to decipher the name of the maker, which was illegibly written, or find out his residence; ” and they averred that “ their failure to find the maker was not owing to their negligence or carelessness, but wholly caused by that of the plaintiff.” Another defense was also set up in the answer, not material to be stated, as no evidence was given respecting the same.
    The evidence given on the trial conflicted on two points : First. As to the person by whom the notes were left with the bank for collection. The plaintiff testified that he was such person; while the collection clerk (Selden) testified that his brother George did so, which was denied by the latter. Second. As to any information given by the plaintiff to the defendants, as to the residence of the maker. According to the plaintiff'’s testimony, the discount clerk of the defendants’ (Selden) asked Mm, and according to the latter’s, he (Selden) asked Creorge Ayrault where the maker lived. The former testified that he answered, that Konz was a butcher and kept a butcher’s shop in Thirty-ninth street, between the Hinth and Tenth avenues; but he did not know the number. He also stated that there was only that butcher’s shop between those avenues in that street. The discount clerk swore that George Ayrault told him, in answer to such question to him, that he did not know where such maker lived, upon which the former told the latter that “ the notary must then do the best he could.” The cashier of the defendants testified that he told the notary that George Ayrault was at Poughkeepsie, because the latter told him he had bought a farm at that place for grazing purposes, and he believed him.
    After the plaintiff had closed his evidence, the defendants’ counsel moved to dismiss the complaint upon three grounds: 1st. The action was for a tort, and therefore not assignable. 2d. The defendants only undertook to hand the notes, if not paid, to a notary for presentment, and not to demand payment of .them, themselves, and having handed them to' a notary for that purpose their duty was discharged. 3. The certificate of protest showed due diligence by the notary. That motion was denied.
    After the close of the whole evidence, the defendants’ counsel again moved to dismiss the complaint on two additional grounds: 1. That the depositor directed the note, if not paid, to be given to a notary to protest, according to the usual custom of banks. 2. That the bank is not liable for the negligence of the notary. The counsel for the defendants then requested the court to charge the jury sixteen different propositions or instructions. Whereof in substance the first was: That if either the plaintiff' or George Ayrault said to the discount clerk of the defendants, that he did not know where the maker of such note lived, it relieved the notary and the defendants from any duty to inquire of either Ayrault, .where such maker lived. The second and third, taken together, were: That the defendants were not liable for any statement made by their cashier to the notary, respecting the residence of the holder of'the note, and that both the notary (if he believed such statement,) and the defendants were excused from making any further inquiry as to the holder’s residence. The fourth was: That the cashier was justified in telling the notary that George Ayrault lived in Poughkeepsie, if the latter never notified the defendants that he lived at the place where his name was, in the directory (93 West Fortieth street,) and led the cashier to believe he had removed to Poughkeepsie, and the latter made such statement to the notary in good faith. The fifth was: That the claim, being for a tort, was not assignable. The sixth, seventh and eighth, together, were: That the defendants were entitled to a verdict, because the only contract, duty or obligation proved to have been entered into or assumed by them was, to collect the note, and if not paid to have it protested-, or if the jury believed the usage and custom of banks to have been (as testified to by a witness) not to demand payment of notes not paid by their officers or clerks, but to hand them to a notary for the purpose. The ninth and tenth, together, were : That no negligence, gross or otherwise, on the part of the defendants had been proved. The eleventh, twelfth and thirteenth, taken together, were also substantially: That it was such concurring negligence as prevented the plaintiff from recovering if the plaintiff left the notes in question with the defendants without informing their discount clerk where their maker lived, after such clerk told him that the notary must do the best he could; or if either of the Ayraults, knowing the residence of such maker, told such clerk that he did not know such residence, or the plaintiff' or George Ayrault, (if he left the notes with such clerk,) omitted to tell him where such maker resided. The fourteenth was: That there was “ no proof of any contract duty or obligation on the part of the defendants to demand payment of such notes and give notice of non-payment.” The last two of such requests, taken together, were in substance that there was “ no evidence that Ryan & Wehman knew or could have given information of the residence of Konz;” and that “ in the absence of such proof, the jury could not presume that” they “had such knowledge; and no negligence of the defendants or the notary could be predicated upon any omission to make inquiry of ” them.
    The learned judge, before whom the issues in the action were tried, charged the jury, among other things, that the defendants “ assumed a liability or the performance of a duty, which they were to carry out by demanding payment of these notes respectively, if they we not paid when they became due;” and after calling upon them to remember that the plaintiff testified, that if he had been asked at the time the notes were left for collection, he knew where the maker lived, and that the discount clerk swore “ positively the plaintiff was asked that question, and said he did not know,” and stated that “it should have a strong influence upon their verdict and weigh a great deal,” if they were “ satisfied the discount clerk asked that question and was told by Ayrault he did not know.” He further charged that “the notary was bound to take all the common and ordinary means of ascertaining, such as business men would use, when they undertook to perform a duty for another and that it was for them " to say whether he used due diligence in ascertaining where William Konz lived it was also for them to say “ whether or not he exercised all the diligence a man would be ordinarily required to exercise in business, or was he negligent in his duty. If he was negligent in his duty and did not exercise all the diligence a man should exercise under such circumstances, then the bank is liable to the plaintiff for the amount of the note; because his negligence is their negligence.” He also submitted to such jury the question, whether “ there was ' any understanding or contract between either the plaintiff or his •brother, whichever left the notes, and the discount clerk of the .defendants, that would take the transaction out of the ordinary rules.” If the person who left the notes said “ he did not know where the maker lived,” and they should “ find in addition, that the notary exercised such diligence as is required in common and ordinary business transactions, to charge, the indorsers,” they should “ give a verdict for the defendants,” but in other specified contingencies, for the plaintiff; that the plaintiff was not “ guilty of negligence on his part in not communicating information of the maker’s residence, when the notes were left,” so as to defeat the action.
    The counsel for the defendants excepted to so much ot the charge as was inconsistent with his requests, as well as to every refusal to charge as requested.
    The jury, found a verdict for the plaintiff for the amount claimed, with interest, and the defendants appealed from the judgment entered therein.
    Other material facts appear in the opinion of the court.
    
      A. R. Dyett, for the defendants, appellants.
    I. The court erred in refusing to dismiss the complaint on the grounds set forth in the case, and in refusing to charge the fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth and fourteenth requests. These may all be considered together.
    1. The demand for which the action was brought was a pure tort, sounding in damages. The plaintiff claimed as assignee of Warren Ayrault, but the demand was not assignable. (Zabriskie v. Smith, 13 N. Y. Rep. 322.)
    2. Not only the universal custom of the defendant and other banks, but the express contract proved between Ayrault and the bank was, to have the notes protested; and to deliver them to a not'ary (a public officer) for that purpose. This was the only contract made, and this was the only duty of the bank. This contract, it performed, and this duty it faithfully discharged. It is not liable for any negligence or omission of the notary. Under these circumstances the notary was not the agent of the bank. Regarding the case in the light of this express contract, the bank' could not employ any other person than a public officer, (a notary;) and being thus obliged to employ another, in whose selection it could have no choice, (except to select some notary,) it is entirely well settled, that the agent is not liable for the negligence of the sub-agent, unless the latter was an unfit and improper person to be employed to the knowledge of the agent; or the latter was guilty of some negligence or carelessness in the limited selection of a sub-agent, which the agent had the power of making. (Dunlap’s Paley on Agency (infra.) 45, 46, and notes.) Regarding the case in the light of the custom and usage of the bank, (of which Ayrault had knowledge, and supposed and expected would be adopted,) the bank’s liability can only be established by showing a similar kind of negligence or carelessness. Whether this custom be regarded as forming a part of the contract, or be a usage of business, with which the agent was authorized to comply without being guilty of negligence, when sought to be charged with it, if the agent act (as the bank did) in good "faith, it is not liable for any default or negligence of the sub-agent employed by it. (Dunlap's Paley on Agency, 4th Am. ed. 1856, by Waterman, p. 4 et seq. and notes, and cases cited there. Id. 45, 46, and notes. 5 John. 393. 12 Id. 218.)
    3. In all the cases in which banks have been held liable for negligence in omitting to demand' payment, or give notice of non-payment to indorsers upon notes deposited with them for collection, there was no proof of any such contract or custom, as proved in this case, but the court has assumed that the bank undertook itself to demand payment and give notice, thus having power to select any agent to do these acts, whom it might select without restriction, and consequently being liable for that agent’s fidelity. (See cases, cited infra.) It is not necessary to protest a promissory note. Anybody can demand payment, and the holder may give notice. But a protest has its advantages. It is an official act, and by statute presumptive evidence of demand. (2 R. S. 283, §§ 46, 47.) And a notary’s certificate is evidence of the service of notice. (Laws of 1833, ch. 271, § 8.) Mr. Ayrault desired these advantages, and he had a right' to them. If the bank in this case had demanded payment by its own clerk, and given notice, it would have violated Mr. Ayrault’s instructions, and broken the contract which it made with him. (20 John. 372. 11 Wend. 473. 15 N. Y. Rep. 167. 9 id. 582. 7 id. 459. 11 id. 203.) In the case in 7 N. Y. Rep. (supra,) the distinction between that case and The Bank of Washington v. Triplet, (1 Peters, 25,) where the receiving bank received the note to be transmitted for collection, is clearly recognized, and the non-liability of the bank in the latter case is admitted.
    H. The court erred in refusing to charge the first and fourth requests, and in charging, as the court did, on the subject of the first request, and not noticing the fourth. The charge was equivalent to an absolute refusal to charge either proposition, and they were both correct, and very’ material on the question of negligence.
    
      III. The court also erred in refusing to charge the fifteenth and sixteenth requests, as the court absolutely refused to do.
    
      E. N. Taft, for the plaintiff, respondent.
    I. The liability of a bank, receiving paper for collection, for failure to demand payment, and give notice to the indorsers, is well established by numerous decisions. (Smedes v. Bank of Utica, 20 John. 372. S. C. 3 Cowen, 663. McKinster v. Bank of Utica, 9 Wend. 46. S. C. 11 id. 473. Allen v. Merchants’ Bank, 22 id. 228, opin. of Senator Verplanck. See also Walker v. The Bank of the State of New York, 5 Seld. 584; Montgomery County Bank v. Albany City Bank, 3 id. 460; Commercial Bank of Pennsylvania v. Union Bank of New York, 1 Kern. 211.) The law is also clearly well settled that a bank does not fulfill its duty by putting the paper into the hands of a notary, but, on the contrary, the bank is answerable for the conduct of its agents in the premises, and their neglect is the neglect of the bank. (Allen v. Merchants’ Bank, 22 Wend. 241. Montgomery Co. Bank v. Albany City Bank, 3 Seld. 459. Commercial Bank of Penn. v. Union Bank of New York, 1 Kern. 211.)
    II. All the questions that can come up for consideration on this appeal are raised by the exceptions contained in the case, and unless the ■ appellants can prevail upon some of these the-verdict must be held conclusive.
    III. But none of the exceptions are well taken.
    1. The motion for a nonsuit was properly denied.
    2. Consider next the exceptions at folios 77,178 and 179. (a.) The evidence ruled out at folio 77 but nevertheless gotten in at folio 173 was of no consequence or pertinence. For the proof that it was customary for banks in the city of Kew York to hand notes received for collection when not paid to a notary to be protested does not tend to show that the banks are not understood to obligate themselves when they receive notes for collection, to hive them duly presented for payment and the indorsers duly charged. 
      (b.) Indeed it has now been held so often in all our courts that a bank in the state of New York, receiving a note for collection undertakes to have proper demand made and notice given, and is answerable for all its sub-agents, that it must be considered with us such a well settled rule of law that no proof of usage, however pertinent, could be considered admissible in the attempt to overcome it. (Woodruff v. Merchants’ Bank, 25 Wend. 675. Bowen v. Newell, 4 Seld. 195.) (e.) It is, however, sufficient for the present purpose to say that the proof in this case was entirely impertinent—not even sufficient to be given to a jury—much less to call for a dismissal of the complaint, which was what the defendants requested of the court, (d.) Assertion is made in the motion for dismissal, that such was the direction of the depositor, to wit: “for the bank to give the notes, if not paid, to a notary to have them properly protested.”, And this was made one of the grounds for asking the court to take the case from the jury and dismiss the complaint. But there was no such testimony. The language was, “I told him, (the clerk,) I wanted them protested if not paid.” Nothing was said about a notary. And it means that he wanted the bank to see to it, that the indorsers were properly charged. Such is held to be the popular meaning of the term “protested,” in several cases. (See especially, Coddington v. Davis, 1 Comst. 189.) Certainly the' case could not have been taken from the jury on this' evidence, (e.) The other questions raised on this motion have all been sufficiently considered. The motion was pi’operly dezzied.
    3. The exceptions relating to the charge should be overruled, for sevez’al reasons, (á.) The defendants’ exception to the refusal to charge each of the requests submitted, except so far as charged, is too general, and will, therefore, not be reviewed. And the same is true of the exception to every part of the charge inconsistent with the requests. (Magee v. Badger, 34 N. Y. Rep. 248. Chamberlain v. Pratt, 33 id. 47, and cases cited. Hunt v. Maybee, 3 Seld. 273.) 
      (b.) But if otherwise, the defendants were not entitled to have a single one of their 'requests to charge adopted by the court in the form requested, (e.) The charge as made, neither refuses nor is inconsistent with any proper request to charge, made by the defendant, (d.) A moment’s attention to the other exceptions will suffice to show that none of them can be sustained.
   By the Court, Robertson, Ch. J.

The learned justice, before whom the issues in the action were tried, after reminding-the jury that the plaintiff had testified that he told the discount clerk of the defendants, (Selden,) where 'the maker of the note in question lived and did business, charged them that if he did so, and the discount clerk failed to make a memorandum of it on the note, that was a matter with which the plaintiff had nothing to do; the defendants, were responsible. This was clearly the law of the case; for if the plaintiff communicated the residence of the maker to the defendants, he did all that could be required of him, and if they undertook to have the notes properly presented for payment and failed to do so, they were clearly responsible.

But the counsel for the defendants insists that under the evidence, they did not enter into any contract, assume any duty, or incur any obligation to present the note in question to the maker for payment, and give notice of non-payment to the indorsers; that they only undertook to hand it to a notary for that purpose, according to their usual practice, and the custom of banks in the city of New York, and that the plaintiff only requested it to be “protested ” if not paid. The requests made on the trial, from the fifth to the eighth inclusive, and also the fourteenth, were based on that assumption. I apprehend the use of the term “protested ” cannot limit the liability of the defendants. By common usage, particularly in regard to promissory notes, in commercial dealings, it has come to include taking all the steps necessary to charge indorsers. (Ood dington v. Davis, 1 Comst. 109.) So also depositing a note for collection does not imply merely the receipt of the moneys, if paid by the maker, but includes taking all such steps before mentioned. (Smedes v. Bank of Utica, 20 John. 372. S. C. 3 Cowen, 663. McKinster v. Bank of Utica, 9 Wend. 46. S. C. 11 id. 473. Allen v. Merchants' Bank, 22 id. 228, per Verplanck, senator. See also Walker v. Bank of State of New York, 5 Seld. 584; Montgomery County Bank v. Albany City Bank, 3 id. 460; Commercial Bank of Pennsylvania, v. Union Bank of New York, 1 Kern. 211.) The cases just cited also establish that the mere employment of a notary for the purpose of making a demand, does not discharge the party undertaking the collection, from the obligation of procuring a proper presentment and notice in case of non-payment. No custom can control such a positive and universal rule of law. The five requests to charge before mentioned, were therefore properly refused.

The same authorities and considerations dispose of the objection that the cause of action was not assignable, contained in the fifth of such requests to charge. The defendants undertook no such public duty as a common carrier does, since they were not bound to contract to present the note when due; they might have limited their liability, or made their contract in any way they thought proper. If they did enter into an agreement to present such note when due, they are responsible for the breach of it as such, and not for a failure to discharge a public duty; nor does the allegation in the complaint that such obligation was a duty or trust, or that the defendants were guilty of negligence, alter that aspect of it. Besides, the objection is merely one of form as to the want of proper persons as plaintiffs, which is waived by not being set up by answer or demurrer. Moreover, the assignment was a mere release of the interest of one to the other already having a right of action. Such objection was therefore properly overruled, and such request rightly refused.

The precise nature, however, of the defendants’ obligation does not so clearly appear from the cases already cited. Of course it is not an absolute one that the note shall be demanded of the maker when due, but merely that the party undertaking the collection shall use due diligence to charge the indorsers by demand and notice; and whatever would be due diligence on the part of the plaintiff'would be due diligence on the part of the- defendants, although the converse of the proposition would not be true. For if the plaintiff or his partner knew the residence of the maker, as they testified, and they omitted to have the notes demanded there, the indorsers would be discharged; but the defendants would not be liable, if the plaintiff did not communicate the residence of the indorsers, and they used due diligence to discover such residence. And this was what the learned judge on the trial intended by instructing the jury to find a verdict for the defendants, if the man who left the notes, said he did not know where the maker lived and “the notary exercised such diligence as is required in common and ordinary business transactions, to charge the indorsers.” This view brings up the consideration whether, as matter of law, the defendants were relieved from any. duty to inquire further of either the plaintiff or George Ayrault, where the maker of the note in question lived, if either of them told the discount clerk that he did not know his residence, as insisted upon in the first request of the defendants to charge, or it was such concurring negligence on the part of the plaintiff and his brother as prevented the former from recovering, if he left the notes in question without informing the discount clerk of the defendants where such maker lived, after such clerk had said to him “ the notary must do the best he could;” or if either of the Ayraults, knowing the residence of the maker, told such clerk he did not know it; or if the plaintiff or George Ayrault (if the latter left the notes for collection) omitted to inform such clerk or the defendants of such residence. The learned judge on the trial charged the jnry, that “it should have a strong influence on their verdict and weigh a great deal,” if the clerk asked that question, and was told by one of the Ayraults that he did not know. This left it open for the jury to decide, as matter of fact, whether one of the holders, having either omitted to give the required residence or denied knowing it, it was a matter of due diligence to inquire of the other. The defendants knew, or at least it was never questioned on the trial that they knew, that the notes in question belonged to the plaintiffs’ firm, and if George Ayrault, as testified to by their clerk, denied knowing and lived at Poughkeepsie as their cashier stated, there was so much more reason for inquiring of the plaintiff who lived here, where the residence of such maker was. It was therefore properly left to the jury to say whether such omission was or was not consistent with due diligence, instead of instructing them peremptorily as matter of law, that an omission or refusal by one of the holders of a note to state where the maker’s residence was, relieved the defendants of all obligation to ask the other, in the course of their inquiry. The mere omission by both might have relieved the defendants from such obligation, but no such proposition was asked to be given. Under, those put put forth, the plaintiff might have told the residence and his brother denied knowing it, and the defendants be discharged. The first, with the eleventh, twelfth and thirteenth of such requests, were properly refused.

Somewhat analogous considerations govern the last two requests (15th and 16th) preferred on behalf of the defendants, in reference to inquiries of the indorsers (Ryan & Wehman) as to the residence of the maker. It was entirely a question for the jury, whether an inquiry of the indorsers tended to inform the defendants of the residence of the makers, and was an act of proper diligence for the purpose. The mere fact that there was no evidence in the ease, that the indorsers knew such residence, is not sufficient to show that all inquiry of them was useless. A want of actual demand was shown in the case. This made out prima fade, a case of negligence. It was for the defendants to show due diligence, and if any natural source of intelligence appeared in the case, they were bound to show that they applied to it in vain. It is a natural thing to suppose that an indorser knows where the maker of a note payable to him is to be found; and if it were perfectly evident that the jury had found a want of due diligence, simply from the omission to apply to such indorsers, the court would not disturb the verdict as being without evidence to support it. The last two requests were, therefore, properly refused.

The real question in this case was whether the defendants performed their contract by using, with the information they possessed, due diligence, by themselves or their agents, to present the notes in question, when due, to the makers for payment, and not whether the notary, who was merely one of such agents, had, with the information he possessed, used such diligence. It was, therefore, wholly immaterial to the plaintiffs’ rights, what communications took place between the different agents of the defendants, such as their cashier and notary, when attempting to discharge the duty of the defendants. What passed between such cashier and notary, relative to the residence of George Ayrault, was, therefore, wholly immaterial in this case. The only material question that could arise would be whether what Ayrault told such cashier was sufficient to induce a belief in the mind of an ordinarily intelligent man that "he had changed his residence; but no such question was propounded. What the cashier was led to believe was immaterial, if the information did not warrant such a belief. His statement to the notary of what he believed, whether officially and in good faith or not, was not material, and could not excuse the defendants, although it might their notary, from making inquiries. The second, third and fourth requests were, therefore, properly refused.

There was clearly enough evidence in the case to be submitted to the jury on the question of negligence; the ninth and tenth requests to charge were, therefore, properly refused.

The exceptions to the admission and rejection of evidence are generally founded on the same grounds as the requests to charge, and were, as well as those which were not so, untenable.

The judgment appealed from must be affirmed, with costs.  