
    JANUARY TERM, 1844.
    Hoopes and Bogart vs. Reuben B. Newman, Executor of Uriah Newman.
    H. and B. sued N. as indorser of a promissory note; N. pleaded that previously to the institution of the suit he transferred to H. and B. a claim which they received in full satisfaction and discharge of the note sued on : H. and B. replied that the claim transferred was worthless, and at the time of the transfer N. knew that nothing was due on it, and falsely and fraudulently withheld that fact: N. rejoined that he did not transfer the claim in fraud, or falsely and fraudulently withhold any information he possessed in reference to it. On the trial H. and B. offered to prove that at the time the claim was transferred nothing was due on it, which was objected to and excluded hy the court. Held, that the evidence offered was improperly excluded.
    Transferring paper with the knowledge that nothing was due on it, and concealing that knowledge, cannot be considered otherwise than fraudulent.
    Notice of the dishonor of a note, to be transmitted by mail, placed in the post-office by the morning of the day next succeeding the demand, in time to go out by the first mail of that day, unless it should leave at an unreasonably early hour, is sufficient.
    If, after reasonable diligence on the part of the holder, the residence of the indorser cannot be ascertained, an excuse is furnished for a failure to give notice. The question of diligence must be determined by the jury from the evidence.
    Quere — If the declaration avers that notice was given to the indorser, will proof that diligent search was made for his residence, in vain, support the averment ?
    This was an action of assumpsit brought by Hoopes and Bogart against Reuben B. Newman, as executor of Uriah Newman, deceased, to the October term, 1841, of the circuit court of Carroll county, on the following promissory note, to wit:
    
      “ $5283 J|j. Tchula, Miss. May 20, 1836.
    “ Twenty-six months after date, we promise to pay to the order of Mr. C. Lane, five.thousand two hundred and eighty-three j|j dollars, for value received; negotiable, and payable at the office of the Planters Bank of Mississippi, at Natchez.”
    “ SholaR & Lane.”
    Indorsed “ G. Lane,” “Uriah Newman,” “ M. King,” and “ James Higgins.”
    
      The declaration is in the usual form, and avers a demand of payment, and notice of protest, &c., to the indorser.
    The other pleadings in the cause are concisely and clearly stated in the opinion of the court. On the trial the plaintiffs’ counsel read to the jury the note sued on. And also a notarial certificate of James K. Cook, which proved that on the 23d day of July, 1838, he presented the note for payment to the teller of the Planters Bank of Mississippi, at Natchez; payment was refused, and he protested it. That on the 24th of July, 1838, by ten o’clock, A. M., he deposited in the post-office at Natchez, three notices, addressed to Uriah Newman, one at “ Tchula, Miss.,” another at “Port Gibson, Miss.,” and a third at “Manchester, Miss.” ; that the notices were directed to the three different places in consequence of the uncertainty of Uriah Newman’s place of residence, after the most diligent inquiry, and on the best information he could obtain. The plaintiff then introduced Nathaniel E. Rives, and offered to prove by him that there was nothing due from the estate of James Higgins, deceased, to Sholar & Lane, at the time of the transfer of the receipt mentioned in the pleadings; and also that C. Lane, a member of the firm of Sholar & Lane, had told the witness so, which evidence was objected to by the defendants, and ruled out by the court. To the opinion of the court, ruling out the evidence offered, the plaintiffs’ counsel filed their bill of exceptions. The witness then testified that some time prior to the transfer of said receipt to Passmore Hoopes, one of the plaintiffs, by the defendant, the defendant had applied to the witness, who was the attorney of the plaintiffs, and offered to transfer to him said receipt in discharge, or payment of the note sued on. And that he then informed the defendant there was not one cent due from the estate of James Higgins to Sholar & Lane, and the receipt was not worth one cent, and that he would not take it upon any terms. The plaintiffs having closed their testimony, the defendant proved that Uriah Newman, from the year 1835 until the time of his death, in September, 1839, lived in Carroll county, about thirty miles from Tchula, about four miles from Shongalo, and sixteen miles from Carrollton, at each of which places there was a post-office, at the time the note fell due, and that he had received two or three letters at Carrollton. The defendant also read to the jury the following receipt; to wit:
    “ August 11 ih, 1841.
    “ Received of R. B. Newman, executor of the estate of U. Newman, Grayson and Griffin’s receipt for a claim against the estate of James Higgins, amounting, to twenty-two thousand nine hundred and eighty-three dollars and eighty-six cents, in full discharge of a claim I hold against U. Newman, as in-dorser of Sholar & Lane. PassMORe Hoopes.”
    Which being all the evidence adduced on either side, the court, at the request of the defendant, instructed the jury as follows, to wit:
    “1. That if the declaration avers that notice was given to the indorser, proof that diligent search was made for his residence, in vain, will not support the averment, or bind the in-dorser;” with this qualification, “that if his residence could not be found, notice to bind him must be sent to his last place of residence.”
    “2. That if the jury believe, from the evidence, Newman did not fraudulently and falsely withhold from Passmore Hoopes any information in regard to the character of the claim against Higgins’s estate, which he had in possession, they must find for the defendant.
    “ 3. That under the state of pleadings, the plaintiffs must prove that Newman made false and fraudulent representations in regard to the claim transferred to Hoopes, or falsely and fraudulently withheld his knowledge that the claim was worthless. And if the plaintiffs do not prove that fact they must find for the defendant.
    “ 4. That if they believe, from the evidence, that Uriah Newman was not notified of the non-payment and protest of said note, within three days after the same fell due, by putting notice in the' post-office, they must find for the defendant.
    “ 5. That unless the jury believe, from the evidence, the notice of protest was sent to the last place of residence of the said Uriah Newman, they must find for the defendant.” The plaintiffs’ counsel asked the court to instruct the jury, “ that if they believe the notary, who protested the note, was unable, upon diligent inquiry, to ascertain the residence, of the indorser, Newman, then the notice sent to him at the proper time, directed to the place at which the note bears date, is sufficient;’ — which the court refused to give, and the plaintiffs excepted. After verdict and judgment for the defendant, the plaintiffs moved for a new trial. Their motion was overruled, and they again excepted. They now bring the case to this court, by writ of error, and assign for error the several decisions of the court below, above-mentioned.
    
      Brooke and Lansdale, for the plaintiffs in error.
    That the court erred in ruling out Rives’s testimony, as appears by the first bill of exceptions, is manifest. His testimony was introduced for the purpose of proving the assertion in the replication, that the claim, or a receipt for a claim, due from the estate of Higgins to Sh'blar & Lane, and- which had been given by defendant in discharge of the debt sued on, was worthless. How did he propose to satisfy the jury of this 'l Why, by the assertion of C. Lane, one of the firm of Sholar & Lane. Could this be said to be hearsay testimony 1 Certainly not, for the principle is too well established to need a citation of authorities, that a person is bound by the admissions not only of himself, but of those under whom he claims. Newman held this claim by transfer from Sholar & Lane; he was therefore bound by any statement or admission that Sholar or Lane might make in regard to it. Such admissions do not come under the description of res inter alios acta. They are part of the res gesta and therefore admissible.
    It is also shown, by said bill of exceptions, that the plaintiff offered to prove by said Rives absolutely, that such was the fact, and even if Lane’s admissions were not evidence, it does not appear that these were the only sources of Rives’s information. The subsequent part of Rives’s testimony, which was admitted, shows the relevancy of that which was excluded. He proves that he informed the defendant of the worthlessness of this pretended claim he held on Higgins’s estate, prior to the defendant’s transfer of it to one. of the.plaintiffs. Proof which, taken in connexion with the facts previously offered, but rejected by the court, would go far to establish fraud on the part of the defendant, in regard to the transfer of said receipt or claim afterwards to one of the plaintiffs.
    The court also manifestly erred in. the first, fourth and fifth instructions, given by it to the jury. The first instruction contains the proposition that under an averment in the declaration of notice, proof that diligent search was made in vain for the place of residence of the party sought to be charged, cannot be given. Now it is well established that although a declaration on a bill should contain the usual averment of presentment in due time, yet evidence of the impossibility of so presenting it might be received. See- Chitty on Bills, 389. 2 Smith’s Rep. 223 — 4. This principle is of course applicable to averments of notice, as there can be no good reason offered for a distinction between them. The qualification annexed to said instruction is absurd, for according to it, though ignorance of the present residence of an indorser might excuse the want of notice, yet if the unfortunate notary happened to be ignorant of the “ last place of residence” of said indorser, his case is beyond remedy. The fifth instruction given involves the same absurdity. The fourth is too broad and general, and would exclude any excuse, however valid, for failing to notify.
    The instruction, asked for by the plaintiffs, involving the principle that if the notary is unable, upon diligent inquiry, to find out the residence of the indorser, then that notice, sent to the place where the bill or note was drawn and dated, is sufficient, is sustained by numerous authorities. In Chapman v. Lipscomb & Powell, 1 Johns. 294, the bill was drawn at New York, the drawers resided at Petersburg, in Virginia. It was held that notices sent to New York and Norfolk, (at which latter place the drawers were supposed to reside,) were, after diligent inquiry by the notary, sufficient. See also Bayley on Bills, 58. 5 Johns. 375. Chitty on Bills, 487.
    
      Where the fact of laches does not appear affirmatively, a promise or offer to pay, is presumptive evidence of proper demand and notice. 23 Wendell’s R. 379.
    
      Thompson-, for the defendant in error.
    The verdict having gone in favor of the defendant, we contend it should not be disturbed.
    1. The plaintiffs make out, in their declaration, no cause of action. The note on which the indorser is sued, was payable at the office of the Planters Bank of Mississippi, at Natchez. The declaration alleges when the note became due, it was presented and shown to the teller of the Planters Bank, for payment, and payment required, &c. It is not stated that it was presented to the teller at the office of the Planters Bank, where alone the presentment would be good. See Chitty on Bills, 590-91 and notes.
    2. Legal notice of protest was not given to Newman, the indorser. The notary, James K. Cook, says he put three notices in the post-office for Newman, the indorser — one to him at Port Gibson —one to him at Manchester — one to him at Tchu-la— and does not say in time to go by first mail of the next day. The note is dated at Tchula. He says three notices were sent to Newman at the different places stated as above, in consequence of uncertainty as to his place of residence, and after the most diligent inquiry and on the best information he could obtain.
    The proof was that Newman lived, at the time the note fell due, thirty miles from Tchula — that he lived four miles from Shongalo, and sixteen miles from Carrollton, at all which places there were post-offices, and that the indorser had received two or three letters from Carrollton. Now the note being dated at Tchula, gives no right to send the notice there against the v indorser. It should have been sent to his nearest post-office. What is diligence in trying to find the residence of the indorser, is a mixed question of law and fact,-and the notary, instead of stating a conclusion of law, as he has done, should have stated what he did, that the court might give the law on the facts. See Chitty on Bills, edition 1836, pp.'486, 487, and notes.
    3. The averment of due notice having been given, it is contended, cannot be satisfied by showing an excuse for not giving notice. See Chitty on Bills, 590, 591, and notes; this is acknowledged to be a disputed point.
    4. The certificate of Cook is not evidence of notice, see Act of 1833, chap. 70. If good for that purpose it is not in legal form.
    5. It is contended that the court did not err in the instructions given to the jury, or in ruling out the evidence of Rives, but even if the court did err in all this, still, if the evidence of Rives had been admitted, the court would have been warranted in instructing the jury that the the plaintiff made out no cause of action against the defendant. If so, the verdict cannot be wrong.
   Mr. Justice Clayton

delivered the opinion of the court.

. This was an action of assumpsit upon a promissory note drawn by Sholar & Lane for $ 5283 indorsed by the decedent, Uriah Newman and others.' The defendant below pleaded non assumpsit, payment, and a special plea “that he delivered to the plaintiffs a receipt of Grayson and Griffin, attorneys at law, for a claim against the estate of James Higgins, deceased, for $ 22,983, which the plaintiffs accepted in full satisfaction and discharge of the debt in the declaration mentioned.” The plaintiffs filed a general replication to the two first pleas, and to the last replied specially, “ that at the time the said receipt was delivered to the plaintiffs, there was nothing due thereon, which fact was known to the defendant at the time, but which was fraudulently and falsely withheld by him from the plaintiffs, and- so they aver they did not and could not derive any benefit from said receipt.” To this replication, there was a rejoinder “ that the receipt was not delivered in fraud, and that the defendant did not falsely and fraudulently 'withhold from the plaintiffs, any information he possessed, in reference to said claim.” Upon this state of pleadings, the parties went to trial, a verdict was found for the defendant, and the cause brought by writ of error to this court.

During the progress of the trial the plaintiffs offered to prove, that at the time of the transfer of the receipt of Grayson & Griffin, there was nothing due upon the claim from the estate of James Higgins; the evidence was objected to and was excluded by the court. A bill of exceptions was filed at the time, to the opinion rejecting this testimony. It was after-wards proven by the same witness, who was one of the attorneys of the plaintiffs, that the same receipt had been offered to him before its delivery to the plaintiffs, when he refused to take it, and informed the defendant that there was nothing due upon it.

The evidence which was offered, and rejected, we think was improperly excluded. It was proven that the defendant was informed, before the transfer, that there was nothing due upon the claim; proof that in fact nothing was due would have established the truth of the replication to the third plea. This would have shown such a fraud in law, as would vitiate the transaction and restore the plaintiffs to their original rights. Transferring the paper with a knowledge that nothing was due upon it, and the concealment of that fact, cannot be considered otherwise than fraudulent. 19 Johns. 294. 11 Johns. 409.

For this reason the judgment must be reversed, and a new trial granted.

Several other points, growing out of the instructions of the court to the jury, have been raised, and as some of these may again arise on the next trial, it is proper to give our opinion upon them.

The first of these, which we shall notice, is contained in the fourth charge, and is as follows: “That if the jury believe, from the evidence, that Uriah Newman was not notified of the non-payment and protest of said note within three days after the same fell due, by putting notice in the post-office, they must find for the defendant.” This instruction was incorrect. The true rule is, that when notice is to be transmitted by mail, it must be placed in the post-office by the morning of the day next succeeding the demand,'in time to go by the first mail of that day, unless it should leave at an unreasonably early hour. It is in no case necessary to place the notice in the office on the day of the demand. This doctrine was gone into very fully by this court, and decided in the late case of Downs v. The Planters Bank, not yet reported.

The next charge we shall notice, is in these words. “ Unless the jury believe, from the evidence, that the notice of protest was sent to the last place of residence of Uriah Newman, they must find for the defendant.” This charge was also erroneous. If after reasonable diligence on the part of the holder, the residence of the indorser cannot be ascertained, an excuse is furnished for a failure to give notice. The rule, in such case, is not that it is sufficient to send the notice to the last place of residence of the indorser, or to the place at which the bill or note bears date; but that it is sufficient to send it to the office believed to be the proper one, from information acquired, upon, due diligence, to ascertain it. Chitty on Bills, 486. Nichol v. Bate & Hill, 7 Yerger, 305. Chapman v. Lipscomb, et al., 1 Johns. 292. The question resolves itself into one of diligence^which the jury must determine from the evidence; if due diligence were used, the question as to the sufficiency of the notice arises. This last question, according to some of the cases, is one of law to be determined by the^court; according to others, it is a mixed .question of law and fact to be determined by the jury under the charge of the court. It is not necessary now to pass upon this point; though our present inclination is to hold, that the whole matter as to due diligence and the sufficiency of the notice, may very properly be submitted to the jury under the charge of the court. 3 Kent, 105.

Another charge which was excepted to, was “that if the declaration avers that notice was given to the indorser, proof that diligent search was made for his residence in vain, will not support the averment.” As the cause will be revised and sent back, it will be so easy to amend the declaration to make it suit the facts, that we deem it unnecessary to do more than to suggest the propriety of such amendment, reserving any opinion upon the point, until its decision may be requisite.

Other points were raised in the argument, which are not, in the view of the case here taken, necessary to be decided; they are therefore passed over.

Judgment reversed, and new trial awarded.  