
    Dunlap vs. Thompson and Drennen.
    When notice is directed to the post office, nearest the residence of endorser, that is proof that he received the notice. ‘ the
    So when the endorser lived at A. five years before the note fell due, and the notary made diligent enquiry for his place of residence, and was informed it was at Paris, a notice directed to Paris will be sufficient, though the defendant might have removed his residence to B. a few days before the note fell due.
    But when the endorser lived at A. and the notice was directed to him at B., where the endorser was supposed to have been when the note fell due, the charge of the circuit judge, “that if the jury believed it probable that the defendant received the notice at the latter place as soon as he would if the notice had been sent to the former,” was held to be erroneous.
    This is an action brought by Thompson and Drennen against Dunlap, as the endorser of a promissory note. A verdict and judgment in the county and circuit court were rendered for Thompson and Drennen. The only question presented by the record was, whether the notice given to Dunlap, as an endorser, was sufficient to charge him. Kingsley, the notary, swore that by the first mail that left Nashville, after the note became due and was protested, he put a notice into the post office at Nashville, addressed to Dunlap at Paris, Tennessee. Kingsley also swore, that he had long known Dunlap, and that he knew he lived at Paris; but that “to make assurance doubly sure,” before he put the notice into the post office, he enquired at the Nashville Inn as to the place of Dunlap’s residence, the Inn being the place at which he always stopped when in Nashville, and that he was informed by the keeper of that tavern that Paris was his place of residence. He also enquired of Thompson and Drennen, and received the same answer. He also enquired of others, whose names he could not remember, and received from all similar information. Kingsley further swore,'that hearing there was a gentleman in town from the western district, who was extensively acquainted in that part of the state, he applied to him, and by him he was also informed that Paris was Dunlap’s place of residence.
    The depositions show that Dunlap left East Tennessee early in the fall of 1828, and went to Paris, and there remained till November 1829; that he then, in November 1829, went to Bolivar to look at that place, to see if it would suit him as a place for his'future residence. He went to Bolivar late in November 1829. He left there and arrived in Nashville on the last day of the same month, and remained in Nashville until the last day of January, 1830. About the 25th of January 1830, he left Nashville and went directly to Paris. Kingsley proves that the notice which he put into the post office at Nashville, directed to Dunlap at Paris, left here about the 26th of January 1830. The note is dated September 1829, and the proof is somewhat contradictory as to where Dunlap resided when the note fell due; some witnesses stating it at Bolivar, others at Paris. The note was protested January 25th 1830, and subsequently when he was sued, about six months afterwards, he offered to pay the sheriff $50, if the plaintiffs would release him. He told the sheriff that when he endorsed the note he understood that Dr. Newnan was to have endorsed it also, and that he did not think he ought to pay more than $50. The note .was for $100. The court charged the jury, that if they thought it was probable, from the evidence, that Dunlap got the notice directed to Paris as soon as he would have got it if it had been directed to Bolivar, although he resided at the latter place when the note was dishonored, it was sufficient to charge him as endorser. The jury found for the plaintiff below.
    
      J. P. Clark, for the plaintiff in error.
    The charge of the circuit court was clearly erroneous. In the case of endorsers, the law requires a strict and rigid adherence to its rules, before they can be charged.
    
      The contract of endorsers is conditional, and the law . does not permit suppositions and probabilities to fix the liability of an endorser. The holder must prove demand and notice, or he must suffer the consequences. Chitty on Bills, 212, 222: 2 John- Cases, 1: 9 John. R. 121: 10 Mass. Rep. 84: 6 Mass. Rep. 386: 2 Conn. R. 121: 3 Conn. Rep. 101: 3 M’Cord, 394: Peck’s Rep. 191: 1 Yerger’s Rep. 166.
    Dunlap’s residence being fixed at Bolivar, as I contend, then a notice directed to him at Paris, is surely not good. Peck’s Rep. 151.
    
      T. H. Fletcher, contra.
    The proof of Dunlap’s residence, if not conclusive, is of such a character as would justify any jury in coming to that conclusion.
    But I further contend, that if he had really removed from Paris to Bolivar, and if that fact was not known to the plaintiffs or notary, that if they used due diligence for the purpose of ascertaining his place of residence, and were told it was at Paris, and then sent a notice to that place, that notice is entirely sufficient, even though he had removed to Bolivar. Chitty on Bills, 276 and 276, note (c): 2 Campbell, 461: 12 East, 433: 13 Johns. 432: 3 Campbell, 362: 1 Johns. 294: 1 Durnford and East, 712: 1 Starkie’s Cases, 116: 3 Esp. Cases, 240: 1 Starkie’s Ev. 338.
    Due diligence is clearly shown by the notary. But it is insisted on the other side, that although the law may be as above stated, that still Thompson and Drennen ought to have given Dunlap another notice at Bolivar, so soon as they ascertained that that was his place of residence.
    It is wholly useless to investigate this point, as there is no proof that Thompson and Drennen ever heard that Dunlap pretended that he lived at Bolivar, until the de-fence was set up on the trial. The law, however, does not make any such requisition of the plaintiffs; and if it does, the rule does not apply to this case, as there is no „ . , , , _iyr J , , , . proof m the record that Thompson and JDrennen had mti-mation that Dunlap resided in Bolivar, until an attempt was made during the progress of the trial to prove it.
   Green, J.

In this case the judge, among other things, charged the jury, that if they believed it probable that the defendant obtained notice of the dishonor of the note by means of the letter directed to him at Paris, as soon as he could if the letter had been directed to Bolivar, this would be evidence of legal notice, although they believed that at the time of the dishonor of the note, and the mailing the notice, Paris had ceased to be his residence, and he resided in Bolivar.

In this charge, I think the court erred. Whether a party received notice or not, must not depend upon probabilities, but must be established by proof. Chitty on Bills, 314.

If the notice be mailed, and directed to the post office nearest the residence of an endorser, that is proof that he received notice. If too, Dunlap had made Paris his place of residence for a year before the note fell due, and the notary made diligent enquiry for his place of residence, and was informed it was at Paris, the notice directed to Paris would be sufficient, though the defendant might have removed his residence to Bolivar a few days before the note fell due. But these facts ought to have been left to the jury, upon the evidence. To place it upon a question of probability, whether the defendant would be at Paris at a particular time, and would probably there receive the notice, was taking the true qüestion from the jury, and placing the case upon a ground not sustained either by reason or authority. The judgment ought to be reversed.

Peck, J.

Believing the court erred in charging the jury, and not knowing what influence the charge had in producing the verdict, the cause must be reversed, has been the constant course of this court. Such

Catron, Ch. J. and Whyte, J. concurred.

Judgment reversed.  