
    Davis vs Beckham.
    Notice of protest to the endorser may be good, though directed to the wrong post office, if it appear that due diligence bad been used for the purpose of ascertaining the endorser's nearest post office. Yet where the notice was directed to a post office which had been discontinued for twelve months and more before the notice was given, it was held, that this was evidence of negligence in that respect, and discharged the endorser. *
    Davis instituted an action of assumpsit against Beckham in the Circuit Court of Obion county, on the endorsement of a promissory note payable at the branch of the State Bank at Trenton. Defendant pleaded non-assumpsit, and the case was submitted to a jury at the October term, 1841, who returned a verdict for defendant. The court set the verdict aside, and the cause was transferred by consent to the Circuit Court of Gibson county, and was again submitted to a jury at the July term, 1842.
    It appears that Rains executed his note on the 25th November, 1840, payable to Beckham six months after date at the branch of the State Bank at Trenton, and that Beckham endorsed and delivered it to plaintiff, Davis. When the note fell due, demand was made and it was protested for non-payment.
    The Notary Public endorsed on the protest these words, to wit; “On 28th day of May, 1841, I deposited in the post office at Trenton, Ten., a notice of the within protest, addressed to B. Beckham as endorser, whose residence is at this time in Obion county, and upon strict enquiry of various persons, I find the nearest post office to bis residence to be at Obionsville, Obion county, Ten., to which place I have directed a notice to him.” Hogg, the Notary, was sworn and stated, that he did not know where Beckham’s nearest post office was; that he called at Grigsby’s, who was a relative of the defendant’s, twice, and that he called at the post office in Trenton and could get no information where to send the notice. He called on the mail carrier from Trenton to Mills’ Point, who told him that Obionsville was the nearest post office to defendant; that he had been at Obionsville and knew where Beckham lived, and that he (the Notary) directed the notice accordingly.
    The defendant proved that there had been a post office at Obionsville, and that it had been discontinued more than 12 months before the maturity and protest of this note. He also proved by the Post Master at Trenton, that the public and usual route to the defendant’s neighborhood was by the way of Johns-ville, a post office on the road between Trenton and Beckham’s neighborhood; ¿hat Johnsville was the nearest point to Beck-ham’s, and that he should have addressed him there. It was further proved, that letters were addressed to defendant at Johnsville after the date of the notice.
    Harris, the presiding Judge, charged the jury, that to make the endorser of the note liable it was necessary that the holder or his agent the Notary should use due diligence to give the endorser notice of the protest; that the post office was a proper medium through which to send this notice, where the endorser did not live in the county, as in this case; that as a general rule the notice should be sent to the nearest post office; but if not known, then the holder or Notary should use due diligence to learn the nearest post office, and to send the notice to such post office; and if the notice, after the use of due diligence, was sent to a more distant post office, yet this would be sufficient notice to bind the endorser. The court further charged the jury, that if the notice was directed to a place where there was no post office, and where there had been none for six, twelve or eighteen months before the date of the notice, this would be evidence of a want of due diligence.
    The jury returned a verdict for the defendant. A motion for a new trial was made and overruled, and the plaintiff appealed in error.
    
      Claiborne, for the plaintiff in error.
    
      Totten, for the defendant in error.
   GRben, J.

delivered the opinion of the court.

In this case notice of non-payment was sent to an endorser, directed to a place where there was no post office at the time. The court told the jury, that if notice was directed to a place where there had been no post office for six, twelve or eighteen months before the date of the notice, this would not be due diligence. We think this charge correct; although a notice directed to the wrong post office may be good, if due diligence have been used to ascertain the right one, and the party is informed that the one to which he directs it is the nearest to the endorser; yet if a post office have been discontinued as long as six or twelve months, that fact is evidence that due diligence was not used.

We are not prepared to say, that if upon diligent enquiry a party is informed that there is a post office at a particular place, and directs a notice there, and it afterwards turns out that it had been but recently discontinued, such notice would not be sufficient. But the length of time the post office had been discontinued in this case, furnishes evidence of the want of diligence. Affirm the judgment.  