
    Farmer's and Merchants' Bank vs. Battle and Massey.
    1. The general rule of law in reference to giving notice through the postoffice to an endorser, is this: The notice shall be directed to the postoffice nearest the residence of the endorser; yet if it be directed to the post office through which the endorser usually receives communications and transacts his business, it shall be good, though not the nearest to his residence. '
    2. It is not necessary in all cases where the endorser resides in the county i n which the note is payable and protested, that a special messenger should be sent with notice. It is only necessary, that notice should be sent by a special messenger where the parties reside at the same place, which includes all those who reside in the same neighborhood and transact their business through the same postoffice.
    3. Where an endorser wrote under his name the name of his post office in compliance with a custom of the bank, established for the purpose of learning the office through which the endorser transacted his business, it was held that this was an implied direction that no.tice should be sent to such post office, and notice given accordingly fixed the liability of the endorser.
    The Farmers’ and Merchants’ Bank instituted this action'of assumpsit in the Circuit Court of Shelby county, against Battle & Massey, on the 12th of May, 1842. The plaintiff declared against the defendants as endorsers of a promissory note, payable to plaintiff, at the Union Bank of Memphis,. for $200. The defendants pleaded non-assumpsit, and an issue on this plea was submitted to a jury of Shelby county, W. C. Dunlap, Judge, presiding.
    It appeared, that Massey executed a note payable to Battle, at the Union Bank of Memphis, for $200, four months after date; that it was the custom of the Union Bank in all cases to require of endorsers of notes executed at that branch to write under their names the post office at which they wished notice sent to them; that the defendants Battle & Massey endorsed this note and wrote under their names “Shelby Corner;” that this was the name of a post office in Shelby county, distant about 25 or 30 miles from Memphis; that the mail went from Memphis to Shelby Corner twice a week; that Shelby Corner was the post-office nearest the defendants’ residences and within three or four miles of their respective residences.
    It also appeared, that the note was protested for nonpayment and written notice deposited in the post office at Memphis in due time, directed to the defendants at “Shelby Corner, Tennessee.”
    The defendants proved, that at the time they endorsed the note, and from that time till the protest thereof, they resided in the same comity (Shelby) in which the note was made payable and was protested; that Memphis and the Farmers’ and Merchants’ Bank, the holder of the note, were in Shelby county.
    The Judge charged the jury, that if the endorsers resided in the same county where the note was payable and protested for nonpayment, the law required the holder to send a special messenger with the notice, and that notice sent by mail, directed to them at their nearest post office,would not be sufficient, although they were required to endorse their post office address under their names on the note, and had done so.
    The jury returned a verdict for the defendants, and the plaintiff appealed.
    
      H. G. Smith, for the bank.
    The Circuit Court is deemed to have erred:
    1st. In declaring the rule to be absolute, that where the holder and endorser reside in the same county, a special messenger must be employed and that the mail will not answer in any case:
    2d. In denying any efficiency to the fact of the endorsers’ underwriting to their names their post office address.
    The general principle is, that when the parties reside in the same place, notice must be by special messenger or by equivalent means: but no case seems to have gone to the extent of defining that the same county is absolutely the same place. The case in Martin & Yerger’s Rep. 183, is not such. Nor to that extent does the case in 1 Yerg. 166, appear to go. In Mart. & Yerg. the same place is defined to be the compass of the same postoffice; page 189. And a distinction is taken between the depositing the notice in the office for the endorser to obtain from the same office, and the resorting to the post office for transmission to another the office of the endorser.
    The case in 1 Yerg. approaches very nearly to defining the same county to be absolutely the same place. The Circuit Judge in that case stated the identical proposition. But the court, while affirming his judgment, avoid employing his language or adopting the unmitigated extent of his proposition. That the Supreme Court did. not intend to adopt the absolute rule declared by the Circuit Judge, is obvious from their not having so said in precise words. The easy and natural course of the court would have been, if it was intended to adopt such rule, to state it in direct terms, and place the decision upon it. This was not done, and therefore it must be inferred was not intended.
    The decision is placed on the ground that the holder did not employ the best means reasonably in his power to inform the endorser of the dishonor of the note; such means it being his duty to employ.
    Obvious differences appear between that and the present case. In the former, the notice was directed to an office which the endorser did not use; in the latter, the notice was sent to the office prescribed by the endorser himself. In the former, the distance between the holder and endorser was eleven miles; in the latter, from twenty-five to thirty miles. In the former, .a notice deposited in the office at the holder’s residence was -more likely to give early intelligence to the endorser than as •addressed; in the latter, the reverse is true, the notice being-sent to the regular post office and addressed to the endorser. In the former, the best means reasonably in the power of the holder, were not employed; in the latter, those means were re-sorted to.
    In both cases the question was, whether due notice was given, which is- a question of law. In the former, it might well be 'held on the facts, that such notice was not given. In the present case, it would be strange to decide that the holder should send a special messenger twenty-five or thirty miles to the endorser, when the endorser informed him in reference to the very matter in hand, his post office address, and the mail ran twice a week to that office.
    The cases on which the doctrine declared by the Circuit Judge mainly proceeds, are between Ireland v. Kip, 10 Johns. R. and 11 Johns. R. In them, the rule is stated, that when the parties reside in the same place or city, the notice must be personal or by equivalent means. The holder and endorser resided in the same city, used the same post office, and no mail or penny post ran between their place of abode for the transmission of their letters. In which respects they differ widely from the present case.
    The New-York cases do not establish the absolute rule, that in respect to the mode of giving notice of the dishonor of negotiable paper, certain ascertained municipal boundaries are the compass of the same place, appears from the late case reported in 2 Hill’s N. Y. Rep. 587, cited in 55 Am. Ju. 172, which is in terms following:
    “Though the holder and endorser reside in the same town, but several miles distant from each other, notice by mail suffices, if it appear that there is a postoffice near the endorser’s residence, at which he usually receives letters, &c. and a regular communication by mail between the two places.”
    Of similar purport is the late case reported in 5 Shepley’s Maine Rep. 360, cited in 52 Am. Ju. where the cashier of a bank at Bangor, holding a note for collection, transmitted it to the cashier of a bank at New York for demand, who enclosed notices of its dishonor for the endorsers at Bangor, under cover to the cashier at that place, who received them and immediately put them back into the postoffice at Bangor, addressed to the endorsers. This was held good notice to the endorsers.
    2. The Circuit Judge debarred the jury from allowing any efficacy to the fact, that the endorsers wrote beneath their names the postoffice address.
    The underwriting their office was a fact in evidence. It had some meaning. What it was, was the province of one or the other, the court or the jury, to decide.. In either case, it was by the court held for naught. If its meaning was to be expounded by the court, the court gave it none. If it was entitled to any efficacy in guiding the jury on the complex question of notice, the court withdrew it from the jury.
    No other conceivable use for the postoffice address exists, but to direct the holder where and how to transmit notice of the dishonor of the paper. It not only indicates the place at which the endorser will receive the notice, but likewise the use of the customary means of transmitting such information to the place. It implies the use of the mail as well as the office.
    
      
      Stanton and J. C. Humphreys, for the endorsers.
   Gbben, J.

delivered the opinion of the court.

This is an action by the holder against the defendants as endorsers of a promissory note payable at the branch of the Union Bank at Memphis.

The plaintiff proved, that notices of demand and nonpayment were placed in the post office at Memphis in due time, addressed to the defendants at “Shelby Corner postoffice;” that said post-office is twenty-five or thirty miles from Memphis, where said. note was payable, and is within three miles of the residence of the defendants, and is their nearest postoffice. It was proved, that Shelby Corner post office is in the same county with Memphis, where said note was payable. The defendants, as it was the custom of the bank to require, wrote under the endorsement of their names, on said note, their post office, “Shelby Corner.” The court charged the jury, in substance, that when endorsers reside in the same county where the note is payable and has been protested, it is necessary to send notices by a special messenger; and that notices sent to them by mail, directed to them at their nearest post office, would not be sufficient, although they might have endorsed their post office address under their names. The Circuit Court was governed in this charge, by the decision of this court in the case of the Nashville Bank v. Bennett, (1 Yerg. R. 166,) where the court decided, that a notice deposited in the postoffice at Murfreesborough, addressed to Bennett at Jefferson, was not sufficient; Jefferson being eleven miles from Mur-freesborough, and Bennett living eleven miles from Murfreesbo-rough and within two and a half miles of Jefferson. Although the Circuit Judge in that case told the jury, that if the defendant lived in the county where the note was payable, he ought to have personal service of notice, and that its transmission by mail to his nearest post office would not be sufficient: yet this court, in affirming the judgment, did not assume that broad proposition. The decision was based upon the proposition assumed by the court, that the holder must use “the means most likely to give the earliest actual notice to the endorser;” and as it appeared in proof, that Bennett was not in the habit of doing business at Jefferson, although it was so near his residence, the court assumed that the holder ought to have known that fact, and to have resorted to means more likely to ensure the endorser’s actual reception of early notice. It would be difficult to maintain the principle of that case. The question, whether a party is in the habit of doing business at a particular post office, becomes important only where the holder seeks to fix an endorser with notice, when it had been sent to a post office which was not the nearest to his residence. In such case, proof that the party to be notified was in the habit of receiving and transmitting communications through the post office to which the notice was addressed, will be sufficient to fix his liability, though there might be another post office nearer, to which he was not in the habit of resorting. But this would by no means prove that a notice addressed to his nearest post office would not also be sufficient: for as a general rule, the law requires that it should be so addressed; but if the holder knows that the party does his business at a different post office, a notice sent to such place will be good, and will form an exception to the general rule. The court in that case refer to the case of Barker v. Hall, (Mart. & Yerg. R. 183,) and recognize the principle upon which it was decided. In that case the note was payable in Nashville, and the notice was deposited in the post office at Nashville, that being the nearest post office to the defendant’s residence, which was seven miles from town. The court decided, that where the parties lived in the same place, a deposit of notice in the postoffice would not be sufficient, but that actual notice must be given by a special messenger. It is also said in that case, that what is meant by the same place, is where the parties live in the same neighborhood and transact business at the same post office. In such case a mere deposit in the post office will not be sufficient. We think this case states the principle correctly; but we do not think it warrants the decision of the Circuit Judge in the present case. There is no reason that a county line should be regarded on this subject. Were we so to hold, the absurdity would often exist, of the necessity to send a notice to one endorser by a special messenger a distance of forty or fifty miles, because his residence was in the county, whereas notice to another, residing only ten miles, would be sufficient if sent by mail, provided the party lived in another county. In the case of Ireland v. Kip, (10 Jh. R. 490 and 11 Jh. R. 231,) the court held, that where the party resided at Kip’s Bay, three and a half miles from the postoffice in the city of New-York, a notice put in the post office directed to him was not sufficient. This case embraces the same principle decided by this court, in the case of Barker v. Hall. The same court, in a late case, (Ramson v. Mask, 2 Hill’s R. 587,) decided that service of notice of dishonor cannot be made through the post office, if the party sought to be charged reside in the same place where the presentment or demand is made. But the court say in the same case, that it is otherwise if he reside in another place several miles distant, though in the same town, provided it appear that there is a post office near his residence, at which he usually receives his letters and papers, and a regular communication by mail between the two places. This case also, supports the principles of the case of Barker v. Hall, as well in the proposition, that when the parties reside in the same place, notice placed in the post office, addressed to the endorser, will not fix him with notice, as in the proposition, that by the same place is to be understood, when the parties live in the same neighborhood, and transact their business at the same postoffice. If a party to a bill or note live several miles distant from the place where it is payable, though it be in the same county, if there be a post office near his residence at which he usually receives his letters and papers, and to which there is a regular communication by mail from the place where the bill or note is payable, a notice sent by the mail will be sufficient.

,2d. Independently of the foregoing view of the case, we think the endorsers, by writing the name of their post office under their signatures on the note, thereby impliedly directed notice to be sent, by mail, to such post office.

Upon both grounds, therefore, we think there is error in the judgment, and that it must be reversed.  