
    Marsh vs. Barr.
    Bill oe Exchange and Promissory Note. Indorser — notice of protest. Though the holder of a negotiable security know the residence of the indor-ser, yet he may not know the post office nearest thereto; and in such case notice of protest directed to the post office, which, after diligent inquiry, is ; supposed to be nearest, will bind the indorser.
    SAME. What is diligent inquiry? Inquiry made of such persons, where the security is made payable as may reasonably be supposed capable of giving the desired information, is diligent inquiry in legal contemplation.
    Cases. Davis vs. Williams, Peck, 191; Dunlap vs. Thompson, 5 Yerger, 67; Nichol 'and Hill vs. Bate, 7 Yerger, 305, approved.
    This was. an action by the indorsee against the indorser of a negotiable bill single, which had been executed by one Harper for goods purchased of John Williams, the beneficiary in the suit, and indorsed by Marsh, the payee, as accommodation indorser for Harper. The debate was as to the sufficiency of the notice of the protest for non-payment, to which point, the record, among others not necessary to the 'question, presented the following facts.
    That the bill was duly presented for payment by a notary, >who, not himself knowing the residence of Marsh, or to what post office he ought to address him a notice, made dili;gent inquiry, and among those inquired of for the residence of Marsh, were the cashier of the bank-in Nashville, where the bill was payable, the postmaster at Nashville, and John Williams, a party to the paper, and the result of the inquiry was the conviction of his mind that Jackson, Tennessee, was the proper and correct-address of Marsh; and he did accordingly, on the evening of the 25th or morning of the 26th of May, 1833, the day of or after the maturity of the bill, and 'before the closing of the mail of the day, make out and put in the post office at Nashville, a notice of protest, addressed to Marsh at Jackson, to whom the post master at that place had, between the years 1825 and 1833, delivered letters, which had been directed to him there, and where he had occasionally called for letters.
    To rebut this evidence, the defendant proved that in the fall of 1832, John Williams had been at the store of Harper, the maker of the bill, within two hundred yards of Marsh’s house, and on inquiry for Marsh, had been shown his house, nnd so -knew the place of his residence; that there was then, and had been, a considerable time, a post office, kept within two hundred yards, and in sight, of Marsh’s house, called Clover-creek post office, at which Marsh received and mailed ,all his letters; that this post office had been established in 1827,-about a mile and a quarter from Marsh’s, and had been removed to Clover creek, and that Marsh had resided there since 1825 or 1826.
    The suit was tried in Madison circuit court, at August term, 1837, before Judge BaRry of the 11th, sitting instead of Read, Judge of the 10th circuit, and his Honor charged the jury, — That if the indorser’s place of residence was known to the holder of the bill, or to his agent the notary public,, and the nearest post office to that residence was also known to either of them, the notice must be sent to such post office; that if either the indorser’s residence or the post office nearest thereto, was unknown to either of them, they were bound to make diligent inquiry therefor; that inquiry to be diligent, in legal contemplation, must be made of such persons at the-place where the bill or note is payable, as may reasonably be supposed capable of giving the required information; that when this is done, the law adjudges that the party has used due diligence; that if. the nearest post office be unknown, and cannot be ascertained upon such inquiry, notice sent to that which, on such inquiry, is believed to be nearest, will suffice, and the endorser will be bound whether he receives it or not, and this although a party to the bill may know where the indorser resides.
    April 13.
    The jury found for the plaintiff below,, and the defendant prosecuted a writ of error.
   Reese J.

delivered the opinion.of the court.

This is the same case which was before the court in 1836, and which .is reported in 9 Yerger Rep. 253. The attitude of the parties is now changed, however, the plaintiff below having recovered a judgment, which he had failed to do on the previous trial. The present record varies from the former in this respect only, that the fact appears now to have been proven to the jury, though not before, that one of the-holders of the note knew the residence of the indorser, at the time of its dishonor. And it is insisted, that knowing that fact, neither the parties nor their agent, the notary public, could affect him with notice of the protest by directing, it to any post office other than the nearest to his residence,, however diligent they may have been in their inquiries, at the-place where the note was payable, if the result of such diligent inquiry should lead to a direction of the notice to any post office other than the nearest.

In by far the greatest number of cases between parties to commercial, paper, the residence of a party being known, his post office is known also, because designated by the same name and place. But residences in the country may be known, and still the question of greater or less proximity to the country or village post office in the neighborhood of the residence remain one of much doubt and difficulty. The residence is a question of fact, and if due diligence be used and information be sought from the usual and proper sources, and the party confiding reasonably in the information received, direct to a post office, which turns out not to be the one nearest to the residence of the person to be affected by such notice, he shall be excused on account of the diligence used, and the party to whom notice was to be given shall be affect* ed thereby.

This question is substantially involved in the cases reported in 9 Yerger, 253; 7 Yerger, 305; and 5 Yerger, 67; and the principles we consider as settled by these cases. The very point is raised in the case of Davis vs. Williams, reported in Peck, 191, and we consider that case as having determined the principle in the same manner. That was a case agreed, and the court being clothed with the powers both of a court and jury, determined, that upon the facts of that case, indeed, the proper degree of diligence was not used; because they thought that to ascertain the question of proximity of post office to the known residence of Williams, the indorser, certain sources of information should be resorted'to, namely, maps and post office documents, the importance of which as calculated to establish the fact we think was overrated by the court. But still the court in that case place the question upon the proper ground, that of diligence or the want of it, in attempting to ascertain correct information.

Upon this ground the circuit court placed the cause before us in the charge to the jury. The verdict which they formed thereon, the court below refused to disturb, and a majority of the court believing that there is no error in the judgment of the circuit court, direct it to be affirmed.  