
    * Stephen B. Munn versus Luke Baldwin and Another.
    The putting a letter into the post-office directed to the endorser of a bill of exchange, and containing notice of its being protested for non-payment, was held sufficient, although it aid not appear that the letter was ever received. See 5 Johns. Rep. 375, Miller vs. Haekley.
    
    This action was assumpsit by the plaintiff, as endorsee of a bill of exchange, drawn in Boston by Meriam & Perry, merchants in South Carolina, on Justin Smith, merchant in Philadelphia, in favor of the defendants, and by them regularly endorsed to the plaintiff.
    The action came before the Court on facts agreed by the parties in a case stated by them. The only question arising on the facts is, whether notice of the protest for the non-payment of the bill in Philadelphia was given to the defendants in Boston, so as to make them liable as endorsers.
    The facts agreed are, that the notary public in Philadelphia, who protested the bill for non-payment, on the day of the protest, or on the morning of the next day before the mail for Boston was closed, put a letter into the post-office in Philadelphia, directed to the defendants in Boston, and containing the necessary notice ; but the case adds, “It does not appear that the defendants ever received that letter.”
    It is also agreed that the drawers and the drawee of the bill had failed some time before the bill became payable, of which the defendants at that time had knowledge.
    
      
      Charming, for the plaintiff,
    cited the authorities in the margin-
    
    
      Bigelow, for the defendants,
    said he should not contend that a seasonable attempt to give notice was not made in this case, although it is not found that the notary was authorized to give it. But he insisted that the rules on this subject adopted in England did not apply here. There the mails were very certain, and often furnished with guards. Here it is well known they were very uncertain, and letters often failed of reaching the place to which they were directed. The attempt to give notice, if it had been pursued until actually received, though late, might have been *an excuse for its being unseasonable; but here only [*317] one unsuccessful attempt was made. But supposing the plaintiff in no fault, so neither were the defendants. They are equally unfortunate, and the question being between two innocent sufferers, melior est conditio defendentis. This attempt at notice cannot be supported by the law-merchant, which existed before mails were known; and the mere usage of merchants cannot make law.
    
      Channing, in reply. The post-office is the public, authorized mode of conveying notice; and putting the letter into the office was in effect giving the notice, which, by the usage of merchants, must be considered as agreed upon. It was not merely an attempt If conveying letters by the mails is in the constant usage of merchants, then it is the law of merchants; for it is constant usage that makes the law-merchant.
    The opinion of the Court was afterwards delivered by
    
      
       Chitty, 95, 162. — 2 H. Black. 509, Saunderson vs. Judge. — Ibid. 563, Muilman vs. D' Eguino. — 1 Johns. N. Y. Rep. 294, Chapman vs. Lipscombe — 3 Esp. 54, Kufh & Al. — 4 D. & E. 174, Leftly vs Mills. — 1 D. & E. 169, Tindal vs. Brown.
      
    
   Parsons, C. J.

The only question in this action is, whether the defendants had legal notice of the protest for non-payment of the bill of exchange. After taking a little time to advise, we are all of opinion that the notice is prima facie sufficient. The holder of the bill made use of the usual mode of conveying notice, by putting the letter containing it into the post-office ; and a mode to which the endorsers must be considered as assenting, or the negotiating of bills payable at a distance would be greatly embarrassed, if not obstructed. For who would buy a bill, to be presented for payment in a remote part of the United. States, if it was to be understood, that if not paid, he must be at the expense of some private messenger, whose accidental sickness or detention on the road would defeat his remedy ?

When a letter is put into the regular post-office, we presume that it was sent and received agreeably to its direction, unless the contrary is proved. Here there is no evidence on that point; the case only stating, that it does not appear that the letter was received by the defendants; and yet, they might, in fact, have received it. [ * 318 ] * If it was agreed that the letter miscarried, and that the defendants did not receive it, it might be a question at whose risk the letter was sent by the mail; and whether, the regular mail being the method of conveyance assented to by the defendants, they must not be answerable for the miscarriage, in the same manner as if a letter sent by their private servant had not been delivered by him. On this last point, however, it is not necessary now to decide. But on the facts stated, we are satisfied that the notice must be considered as sufficient to make the endorsers liable, and that the plaintiff ought to recover.

Therefore, conformably to the agreement of the parties, let the defendants be called. 
      
       [Shed vs. Brett, 1 Pick. 401. — Stanton vs. Blossom, 14 Mass. 116. — Ed.]
     