
    Nichol & Hill vs. Bate.
    Where the residence of the endorser is unknown to the holder, a notice sent to a wrong post office will he sufficient, provided due diligence be used to ascertain the right place.
    This is an action by the endorsees, against Bate, as an endorser of a note payable at the Branch Bank of the U. S. at Nashville. The note was duly demanded and protested, and on the day of protest, notices were forwarded by mail to the endorser, Bate, directed to him at Cairo. The Notary made inquiry of many persons as to the residence of Bate, and what post office was nearest his residence, and from the best information he could obtain, he believed Cairo post office was nearest his place of residence. In October 1831, several weeks after the note fell due, the notary gave Bate another notice. Bate was proved to reside within four miles of Cairo, did a good deal of his mercantile business there, was there two or three times a week in winter, but not so often m . , , , „ summer. Bate received letters at the post office in Cairo occasionally, and received from the post master in Cairo the identical notice, one or two weeks after it arrived. The nearest post office to Bate’s residence, was Green Garden post office, about one mile and a half. The post office at Cairo was near five miles. Neither the notary, the plaintiff nor the cashier of the Bank, knew where the nearest post office was, nor in what part of Sumner county Bate resided. Communications had been addressed from Nashville to Cairo for Bate, and the notary had been so informed. The counsel for plaintiff requested the court to charge the jury, 1st. That an endorser might be so situated with regard to two places, that notice directed to him at either would be sufficient. That if Bate had been in the habit of applying occasionally for letters, andv receiving them at the Cairo post office for many years, although the principal part of his correspondence was carried on through the Green Garden post office, notice directed to him at the Cairo post office, would be sufficient. 2d. That if the notary and the holders of the note were ignorant of the place of residence of defendant, and used due diligence to ascertain the same, and notice was then sent to the post office believed to be nearest, according to that information, it would be sufficient, thoi/gh it might turn out, in point of fact, that they were mistaken. 3d. That whether the holder had used due diligence to discover the place of residence of defendant was a question of fact for the jury, although what constituted due notice was a question of law. But the court would not so charge, but charged that it was the duty of Nichol, Hill & Co. to know where Bates lived, and to have given information to the notary, and that wrong information in this case would not excuse. That occásionally doing business at Cairo post office would not do, &c. The court also refused a new trial.
    
      F. B. Fogg, for plaintiffs in error,
    cited Bateman vs. Joseph, 12 East. 433: Wightwick’s Exchequer Rep. 76: Reid vs. Payne, 16 Johnson, 218: Chitty on Bills 213, 214: Bank U. S. vs. Connell, 2 Peters S. C. Rep. 543. He also argued that the case of Davis vs. Williams, Peck’s Reports, was unlike this in many respects: in that case, Davis knew well the endorser’s place of residence; had been there several times, and Williams never did any business whatever at the post office where the notice was directed, it was 20 milés from him, and no diligence whatever was used to ascertain the proper office.
    
      J. Rucks, for defendants in error.
    Cited and relied on Davis vs. Williams, Peck’s Rep. 151.
   Green, J.

delivered the opinion of the court.

In this case the counsel for the plaintiff below requested the court, among other things, to charge,

“That if the notary public and the holders of the note were ignorant of the place of residence of the defendant, at the time it became due, and used due diligence to ascertain the same, and notice was then sent to the post office believed to be nearest, according to that information, it would be sufficient, although it might turn out, in point of fact, that they were mistaken.”

This charge the court refused to give, but told the jury, in the conclusion of the charge, that “it was the duty of Nichol, Hill & Co. to have known where Bates lived, and given information to the notary; that wrong information in this case, would not excuse.”

We are of opinion that the court erred in this charge to the jury. Personal knowledge, on the part of the holder of a bill, of the place of residence of an endorser, cannot, in many cases, be obtained. The party must of necessity rely on the information of others. If it were to be settled as the law, that although the holder of a bill may have sought diligently to ascertain from the most correct sources the residence of an endorser, and the post office to which his residence is nearest, nevertheless, if his information should be erroneous, and upon such wrong information he should direct the notice to the wrong post office, it is to be considered as no notice to the endorser, who is thereby released, the circulation of negotiable paper would be very much restricted, and commerce would seriously suffer. But such is not the law, although in the case of Davis vs. Williams, in Peck’s Reports, some strong language is used, lending to such a conclusion; yet we are to understand it in reference to the facts of that case, and not as assuming the general principle, that the holder is bound to know the residence of the endorser, and the proper post office to which the notice should be directed. In the case of Chapman vs. Lipscombe and Powell, (1 John. Rep. 292,) the endorser lived in Petersburg, Virginia, the bill being payable in New York, where it was protested for non-payment. The clerk of the notary enquired at the Banks and elsewhere, for the residence of the endorser, and was informed they resided at Norfolk, [IVirginia, and the notice was sent to them at that place. The court say, “this is sufficient, and all that ought to be required. He has used due diligence.” It is also laid down in Chitty on Bills, 213, 214, that where the residence of the endorser is unknown, a notice sent to a wrong post office will be sufficient, provided due diligence be used to ascertain the right placp. So this court held in the case of Dunlap vs. Thompson and Drennen (5 Yerger’s Rep. 67.

But it is said this doctrine will apply where the residence of an endorser is uncertain, not where it is fixed and known. There is no such distinction in the books. I suppose in the case of Chapman vs. Lipscombe and Powell, the residence of the defendants was fixed at Petersburg, and, by those acquainted with their place of residence, was known to'be there; nevertheless, it being unknown to the plaintiff, and due diligence having been used to ascertain it, the notice to Norfolk was deemed^ sufficient.

It is insisted in the argument, that although the charge of the judge may. have been incorrect, had the language been used without reference to the 'particular facts of this case, yet that when applied to the case in this record it is not erroneous because the proofs do not show that the plaintiffs below used due diligence to ascertain the residence of the defendants, which information might have been easily obtained, and not having done so, wrong information would not excuse, but the plaintiffs were bound to know where Bate lived.

According to this argument, the court took the cause entirely from the jury, and decided the whole cause, the fact as well as the law. This would have been error. The fact whether there had been due diligence used to ascertain the residence of the defendant, was a matter for the jury to determine from the evidence; the question of law, whether if due diligence were used to ascertain the residence, and if in consequence of misinformation, the notice were sent to a wrong place, it would be sufficient, was to be determined by the court. The charge is therefore wrong, whether it be understood as assuming the abstract principle, that a holder of a bill is bound to know the residence of the endorser, and that wrong information, upon diligent enquiry, will not excuse; or whether the judge intended to assume, that in this case due diligence had not been used, and that therefore, the wrong information received would not excuse.

It is not necessary to determine, whether the evidence in this record presents a case where the plaintiff used due diligence or not, it is enough that there was evidence upon the point before the jury; that the question of fact was fairly made, and that it ought to have been left to the jury upon a proper charge.

The judgment ought, therefore, in my opinion, to be reversed, and the cause, remanded for another trial.

Peck, J. concurred.

Judgment reversed.  