
    William M. Helm vs. C. P. Smith, Executor of Peter Smith, deceased.
    Where (he bill of exceptions, in its recitals, states that the exceptions were taken at the time when made and before the jury retired, it cannot be contradicted by . the statement of the clerk in the record, that they were taken subsequently.
    Publication of notice of the grant of letters testamentary, is not notice to all the world of 'the death of the testator. It is notice only for the particular object of the statute requiring it, and does not extend to the death of the testator.
    The grant of letters testamentary, is notice to all who are directly interested in its subject-matter, and who have a right to object to the proceedings and appeal from the judgment.
    Positive proof of the want of notice of the death of a deceased person, is admissible to rebut the presumptive evidence of notice that may arise from the grant of letters testamentary, and publication thereof.
    Notice by mail, of the dishonor of a note made by a deceased person, which fell due after his death, if received by his executor within the proper time, is a sufficient presentation of the note to the executor, to prevent the statute of limitations barring it.
    Any legal evidence that would establish the fact of the knowledge of an executor or administrator, before the limited period has expired, to the satisfaction of a jury, that a claim existed against their testator or intestate, will establish a sufficient presentment under the statute, to such executor or administrator.
    The period within which, by the statute oT this state, (How. & Hut. 413, § 92,) claims against deceased persons, must be presented to their representatives after the publication of the grant of letters testamentary or of administration to them, does not commence running until the whole time of publication of the grant, required by the statute, is completed.
    This cause is brought to this court from the circuit court of Wilkinson county, by writ of error.
    The plaintiffs in error sued the defendant in an action of assumpsit, upon an indorsement made by his testator, of a note made by Henry A. Moore, dated December 20th, 1835, payable on the first of January, 1839, for seven thousand nine hundred and twenty-four dollars, at the Planters Bank, of the state of Mississippi, in favor of James M. Smith, and by him and Peter Smith, the defendant’s testator, indorsed, and indorsed also by William T. Mayes. The declaration averred that Peter Smith, before the maturity of the note, had died, and that the defendant had been appointed his executor by the probate court of Wilkinson county; that as such, he had notice of the failure to pay. The promises were laid as having been made by the defendant.
    The plea was non assumpsit. The case was submitted to a jury, who found for the defendant, and judgment was entered below accordingly. The record then proceeds in these words :
    “And afterwards, to wit, on the 23d day of October, in the year of our Lord one thousand eight hundred and forty, the plaintiff moved the court here for a new trial, which motion was overruled, whereupon the plaintiff, by his attorney, filed the following bill of exceptions.”
    “ The State of Mississippi, ? October Term, A. D. 1840, Wilkinson County, ^ Wilkinson Circuit Court.
    
    
      “ W. M. Helm v. C. P. Smith, Executor of Peter Smith, deceased.”
    “ Be it remembered that on the trial of this cause, the plaintiff having read to the jury the promissory note sued on and upon the indorsement whereon said action was brought.”
    (Here the note is inserted as described above, with the following at the foot of it.)
    “Presented to the undersigned as executor of the last will and testament of said Peter» Smith, and James M. Smith, deceased, this 1st May 1837, C. P. Smith.” And having also read to the jury the deposition of James K. Cook, a notary public, and ex officio justice of the peace, and notary public of Adams county, and the notice thereto attached, which’ said deposition- and notice are as follows.”
    The bill of exceptions then set out in full the deposition. Cook proved that on the 4th and 5th of January, A. D. 1839, he had no knowledge that Peter Smith was dead, and did not therefore know who his representative was; that he presented the note for payment at the bank, to the teller, on the day of its maturity; that it was not paijl; that on the day of the refusal to pay, he addressed a notice to Peter Smith, at Woodville, Mississippi, notifying him of the facts. That this notice was put into the post-office at Natchez, in time to go by the first mail from Natchez to Woodville. He filed with his deposition a copy of the notice to Peter Smith, which was in these words:—
    “ Natchez, 4th day of January, 1837.
    “ Please take notice that a note drawn by H. A.. Moore, for $ 7924, in favor of James M. Smith, and indorsed by you, dated payable at the Planters Bank, of the state of Mississippi, was this day protested by James K. Cook, the undersigned, justice and ex officio notary public, for nonpayment. The holder looks to you for payment.
    ■“James K. Cook.” (L. S.)
    The bill of exceptions continues its recitals as follows:
    “And it having been proven that the said Peter Smith,'after the making and indorsement of said note, and before the same became due, had died, and that at the time.of his death, and for a year or two previous thereto, he, the said'Peter Smith, had resided near Woodville, in Wilkinson county, and that Wood-ville was his post-office, -at and for a year or two previous to his death, and that the said defendant, C. P. Smith, his executor, and who was also his executor at the maturity of the note, resided near Woodville, and that said Woodville was his post-office, on and after the said 4th day of January, 1839, and that he kept an office in said Woodville, at that time, and was in the habit of receiving all his letters at said Woodville post-office. And the said plaintiff having further proved, by the post master at said Woodville, that he did not believe that he had ever sent any letter to the general post-office, as a dead letter, which had come to the said Woodville post-office, directed to the said Peter Smith, and that there was now no letter in said post-office directed to said Peter Smith, but that he did not recollect to have ever delivered to the said defendant, C. P. Smith, any letter directed to the said Peter Smith; a great many letters coming through said post-office, it was impossible for him to recollect positively to whom the letters coming through said post office were delivered ; that he would have delivered any letter coming to said office to said defendant, if said defendant had asked for the same.
    “ And the defendant having proved in evidence a publication and notice by him, as executor, made and published in the Woodville Republican, a newspaper printed in the town or Woodville, for all persons who had claims against the estate of the said Peter Smith, to present their claims in the time prescribed by law, according to the statute in such case made and provided, which said publication was commenced and made the 14th day of October, A. D. 1837, in said newspaper, and for six weeks successively thereafter; and there was no evidence offered to the jury, of presentment to the defendant, except the evidence of James K. Cook, sending said notice through the post office, of the dishonor of said note. After which, and after said cause had been submitted to the jury, and before the jury had retired from the bar, the defendant asked the court to charge the jury, that the grant of letters testamentary to the defendant, by the probate court, and due publication of notice to the creditors of such grant, was notice to the whole world of the death of said testator, and of the appointment of the executor.”
    (This charge was given and excepted to.)
    “ The defendant further asked the court to instruct the jury, that if the holder of the note knew that Peter Smith was dead, and that C. P. Smith was his executor, at the time the notice of nonpayment was sent, the notice ought to have been directed to the executor, and in such a case, a notice directed to the testator would not be presumed to reach the executor through the post office.”
    (This charge was also given, and excepted to.)
    “The said defendant further asked the court to instruct the jury, that a presentment of a claim against the estate of the deceased Peter Smith, must be an actual presentment, and not a constructive one. That a notice to the executor, through the post office, of presentment for payment and dishonor, would not be a notice of presentment of the claim to satisfy the statute, though received by the executor.”
    (This charge was also given, and excepted to.)
    “ The plaintiff then asked the court to charge the jury, that if they believed, from the evidence, that the claim sued on was presented to the defendant, as executor of the said Peter Smith, within eighteen months from the time of the last publication of the notice, made by said defendant, as executor, for all creditors to present their claims against the estate of the deceased, it was sufficient; that it was not necessary that said claim should be presented within eighteen months, from the first insertion of said publication of notice.”
    The court refused to give the charge, and the bill of exceptions closes with these words :
    
      “ To which several decisions of the court, the said plaintiff then and there, and before the jury retired from the box, ex-. cepted, and prayed this, his bill of exceptions, to be signed, sealed, and enrolled by the court, and made a part of the record in this case, which is accordingly done.
    “ GeoRGR Coaltee.” (Seal.)
    ' The errors assigned are, the giving the charges asked by the defendant, and the refusal to give the one asked by the plaintiff.
    
      QiMtman and McMurran, for plaintiff in error.
    1. We conceive that there cannot be a question as to the error in the charge of the court below, that the claim must be presented to the representative of the deceased, within eighteen months from the commencement of his publication of notice to creditors, instead of eighteen months from the close of the publication. A reference to the statute is decisive of this point. How. & Hut. Dig. 413, sec. 92, 93. The creditor has eighteen months, after publication made, not after the commencement of the publication, not after the first insertion of the notice in the •newspaper, but after the publication is completed. For it does not amount to a publication until the notice has been given for the six weeks, or longer, if the probate court should so direct, it amounts to no publication at all, if it falls short one day of what the law requires. As it appears by the record that the representative received notice of the claim within the eighteen months after the six weeks’ publication was made, the instruction of the court on this point was erroneous.
    2. The next question is one of more difficulty, whether the notice of the dishonor of the note sued on is sufficient to bind the defendant’s testator, as the indorser of the note. Although we may not be able to refer the court to any direct authority upon this point, we believe we can show, by analogous cases, that the decision of the court below, in regard to this question, was also erroneous.
    Thus, in the case of M’Murtrie v. Jones, in 3 Wash. C. C. Rep. 206, it is decided that notice left at the former residence of the indorser is sufficient to charge him, though he had terminated his residence there by departing to a foreign country a couple of weeks, before, and the holder or notary making no inquiry as to the party’s residence at the time the notice was given. Also, 2 Caines’s Rep. 121. Bailey on Bills, 283.
    Still stronger, and more in point, is the case of the Bank of Utica v. Phillips, 3 Wend. Rep. 408. There it is expressly decided, that notice directed to the place where the indorser resided at the time the note was made or discounted, is sufficient to charge him, although intermediate that lime and the maturity of the note, he had removed; inquiry as to the residence not being necessary, where the holder believes that he knows his place of residence. With how much more force does the principle apply in this case, as every man is presumed to be living, until the fa'ct of his death is brought home to the parly interested ? It was not the duty of the holder, or the notary, to inquire whether the indorser were living or not; and until it should be proved that they knew of his death, at the time of the protest of the note, notice directed to him, at his post-office, in his lifetime, is sufficient. And there is no proof of any such knowledge in this case, nor does the instruction contemplate it.
    In the case of Nott & Co. v. Dowing, et al, 6 Louis. Rep. 684, we have an analogous case peculiarly applicable to the one now before the court. In that case, it appears that a note was indorsed by a copartnership on the 3d March, 1833; on the 3d’April, thereafter, the partnership was dissolved, and public notice of the dissolution, in two different newspapers; the note fell due the 3d February, 1834, ten months afterwards, and the court decide that notice to one of the partners is sufficient to bind the vest, unless the dissolution of the copartnership was proved to be known by the holder, at the time the notice was given. The common notice in the newspaper was not sufficient, it must be brought home expressly to him. If it had been, the notice to one would not have been sufficient to charge any of the others. Bayley on Bills, 285.
    Surely then, when an indorser dies, although the administrator may have given his notice, for all persons having claims to present, it amounts to nothing as to the notifying of the indorser, and is no proof that the holder knew, or ought to have known, of the indorser’s death. And surely, also, if the plaintiff in this instance, through the notary, sent the notice to the post-office, where the indorser received his letters in his lifetime, and where the executor received his, and the holder knew nothing of his death, he has done all that the law requires.
    But this court has already directly decided this point, in the case of Barnes, Executor, v. Reynolds, etal., 4 How. 114. There notice was sent to the deceased, and the court determined that it was sufficient, unless the holder or notary knew that the indorser was dead, and- who were his .executors, and that fact appeared affirmatively.
    
      C. P. Smith, for defendant in error.
    In this case, after verdict and judgment for defendant, in the court below, the plaintiff moved tiie court for a new trial. Neither the motion itself, nor the “ reasons.offered for the new trial,” are made a part of the record. This could only be done by bill of exceptions, to the decision of the court overruling the motion. It is merely stated, by way of historical recital in the record, that “plaintiff moved the .court here for a new trial, which motion was overruled.”
    “ Afterwards,” that is, after the verdict and judgment for defendant, and after the motion for a new trial was overruled, the plaintiff tendered the bill of exceptions which appears in the record. This bill of exceptions is not taken to the judgment of the court overruling the motion for a new trial, but to the decisions of the court upon questions of law, in relation to which, the charge of the court was asked on the trial before the jury.
    At common law, the decision of the court on a motion for a new trial, did not form the subject matter of a writ of error. The question whether a new trial ought to be granted or not, was submitted exclusively to the sound discretion of the court. Barr v. Gratz, 4 Wheat. 213. United, States v. Daniel, 6 Ibid. 542.
    By the statute law of Mississippi, this rule of practice has been changed. The statute provides “ that the party against whom a decision may be made, under such motion, (for a new trial) or his counsel shall conceive such decision of the court to be contrary to the law of the land, such party may except to the opinion of the court, and may reduce the reasons offered for said new triad, together with the substance of the evidence in such case, and also the opinion of the court on said motion, to writing.” Upon which being done, it is the duty of the judge to sign the bill of exceptions, and make the same a part of the record. How. & Hutch, p. 493, sec. 52.
    The record does not recite that the plaintiff or his attorney excepted to the decision of the court on the motion for a new trial; nor does the bill of exceptions which appears in the record, even by implication show that the ruling of the court on the motion for a new trial was objected to.
    1. We then assume that the decision of the court below, on the motion for a new trial, is not a subject-matter of inquiry before this court, or that if the court can notice it, there is nothing on the record to show that it was erroneous.
    If the party against whom a decision is made on such a motion, desires to have the decision reviewed, he must except to the opinion of the court on the motion, reduce the reasons offered for the new trial, (that is, the grounds on which the motion is based,) together with the substance of the evidence in such cases, to writing. These steps are essential prerequisites to an examination of the decision on the motion. Without a statement of the grounds upon which the motion for a new trial is predicated, the appellate court cannot know the questions which were presented to thé court below on the motion'; and without “ the substance of the evidence in the case,” or the evidence in support of any reason assigned for the new trial, this court cannot test the correctness of the judgment on any reason assigned. This court can only review the decisions of the court below upon questions presented to it, and by it decided. 1 How. Rep. 167.
    And it is a corollary from this indisputable position, that although the evidence embodied in the bill of exceptions, may present a state of case which would authorize the court to sustain the motion for a new trial; yet if the reasons assigned for a new trial have no reference to the evidence in the case, the judgment of the court will be sustained. Admitting, for the present, that the evidence embraced in the bill of exceptions was sufficient to entitle the plaintiff to a verdict, and that the instructions given at the instance of defendant’s counsel were erroneous; these facts can have no effect to invalidate the judgment of the court on the motion, because the record does not show that that judgment involved • any question as to the sufficiency of the evidence, the propriety of the finding, or the correctness of the charge given by the court. And without it. is shown by the record expressly, that these facts were brought to the consideration of the court and adjudicated on, the inference will be that they were not; that the court decided correctly.
    1 How. Rep. 167.
    2. The statute, above recited, requires, as a necessary step to review a decision on a motion for a new trial, that the substance of the evidence in the case, be reduced to writing, and embraced in the bill of exceptions to the opinion of the court. The record does not state that the evidence contained in the bill of exceptions was the whole evidence in the cause, or that it was “the substance of the evidence.”. Without this recital in the record, the court cannot know that it is so, or that no other evidence was introduced. If the evidence, as it appears in the bill of exceptions, is such as to show that the verdict of the jury was wrong, and that as a consequence the court below erred in overruling the motion, this court is bound to presume that there was additional evidence on the trial, as the record does not exclude the fact that there was other evidence; and that the evidence not contained in the bill of exceptions, was sufficient to sustain the verdict of the jury, and the decision of the court. Suppose, by way of illustration, that the billof exceptions had recited merely that certain evidence, setting it out, was adducedbn the triat, by the plaintiff, fully sufficient to require a verdict’in favor of the plaintiff; without stating that it was the whole evidence in the cause, or that it was the substanee'of the evidence, or that any evidence was introduced by defendant; Keyes v. McFal-ridge, 6 Munf. 18, “or all the evidence given in the cause on either side; ” 1 Calk R. 28; would not this court be bound to say, that as the bill- of exceptions-doés'-ríbt directly negative the idea that other evidence was introduced to rebut it; that such evidence was presented, and that the decision of the court on the motion for a new trial was based on that evidence? Judgments are presumed to be correct, until the contrary is established. In addition, I will again call the attention of the court to the fact, that the bill of exceptions has no connexion or reference to-the decision of the eourt on the motion for á new trial. There is nothing therefore to show that the court erred!
    3. But admitting, for argument, that an exception was taken to the decision of the court on the motion for a new trial, and that the whole evidence in the cause is contained therein, we contend that the court upon the facts decided correctly.
    The defendant relied oh the statute barring claims against the estate of deceased persons, not presented to their legal representatives within eighteen months after publication of the grant of letters. The'bill shows that due proof of publication was made; and states expressly that “there was noevidence offered to the jury, of presentment to the defendant of said claim, except the evidence of James K. Cook sending said notice, marked (B), through the post-office, of the dishonor of said note.”
    The evidence in support of the defence, was full and conclusive, if the notice dirocted to Peter Smith, fifteen months after publication of the grant of letters testamentary on his estate, to the defendant, was not a presentation of the claim against the decedent’s estate, within the meaning of the act.
    Actual notice of the dishonor of a bill or note was formerly-required; but the interests and exigencies of commerce required a relaxation of the rule; and courts of justice, in pursuance of a principle of the common law, which may be said to be a portion of its vital essence, by which it conforms itself to the altered condition of human concerns; instead of bending that altered state of things to the existing rule, modified the principle, and accepted constructive in the place of actual notice of the dishonor. But the doctrine of constructive notice does not apply to the presentment of claims to an executor or administrator. The interests of society do not require it, but forbid an application of the doctrine of constructive notice to claims against the estates of deceased persons. ' But in fact there could not be a constructive presentment of a demand. Evidence that a notice of the dishonor of a bill had been duly mailed and properly directed, is admitted as proof of the reception of the notice by the person to whom it was directed; but would it be held, that a notice proved to have been received, addressed through the post-office, to the drawer of a bill of exchange by the holder, informing the drawer that he held such bill, was either actual or constructive presentment of the bill, so as to bind the indors-ers? In the former case, evidence of the mailing and direction of the notice, was sufficient proof that the notice was received; but in the cited instance, the actual reception of the notice would not be proof of presentation, for the plain reason that nothing could be a presentment except an actual exhibition of the bill by the holder, or his agent. It is conceived that the case of an executor is precisely analogous to that of the drawee of a bill of exchange, so far as the fact of presentment is concerned. If therepould be any doubt on thesnbject, arising out of the nature of the transaction, it is believed that the statute is decisive. It will be found in How. and Hutch. Rev. Stat. p. 413, sec. 92. It provides that, “ All claims against the estates of deceased persons, shall be presented to the executor or administrator, or collector, within eighteen months after the publication of notice for that purpose, by the executor, administrator, or collector, and not after; and all claims not presented within the time aforesaid shall be held forever barred,” &c.
    4. Again, there was not sufficient evidence of the notice of the dishonor of the note sued on, to defendant, as the representative of the indorser.
    If the notice of the dishonor of the note had been sent before the granting of letters testamentary to the defendant, and due publication of notice to the creditors of deceased was made by the defendant, it would not be denied that the notice was sufficient. But the grant of the letters testamentary, and publication of notice created a legal presumption that the holder knew of the death of defendant’s testator; at any rate it was sufficient to destroy the presumption that all men are living until the contrary is shown. The publication of notice alone may not be sufficient for that purpose; but the probate of the will and the grant of letters by a court of record, it is deemed must have that effect. In fact, it is alone upon the assumption that by these facts the creditors of a deceased person are apprized of the death of their debtor, that the equity of the statute could be maintained. At all events, it was sufficient to put the holder upon inquiry, as he was a citizen of the state, and of the same county with the deceased. The notice, therefore, should have been directed to the executor, and not to the deceased. At most, it was a question which should have been left to the jury, to determine whether .the notice had actually reached the defendant, or not. They decided it with much better opportunities of forming a correct decision than this court possesses. The court will not disturb their verdict.
    If what has been said is just, and it is respectfully insisted that it is law, this court will not disturb the verdict of the jury upon any of the grounds which have been considered. It remains, then, to be considered whether the court erred in giving the charges asked for on the part of the defendant.
    1. Did the court err in giving the first charge, (page 16 of the record): It is difficult to conceive how it can be objected to. The proceedings of the court are matter of record, and its judgment in the matter certainly binds “ the whole world.” And if the publication of notice, and of the grant of administration, were not notice to the creditors, in contemplation of law, neither in law or equity would they be barred by non-presentation of their claims within eighteen months thereafter. But the charge is upon an abstract question of law, and this court cannot perceive, even if it is erroneous, how it could have influenced the verdict. Gaines v. Collins, Walk. R. 520.
    2. Did the court err in the second charge! (page 17). The first part of the charge is undeniably correct. In general, the notice must be sept to the executor; but if the holder does not know that the party is dead, and of this fact he is not bound to inquire, it will be sufficient if the notice is sent to the post-office of the decedent. Bayley on Bills, 287. But if he is apprized of his death, and of the appointment of his executor or administrator, the notice-should be directed to him. Bayley on Bills, 287. M. Bank v. Binney, 17 Johns. R. 25. H. v. Eden, 2 Caines’s R. 128. In that case, no administration had been granted of Eden’s estate, nor the will proved. In this case, there were both.
    But if any objection to the charge exists, it is to the latter part. It is in these words : “ In such a case, a notice sent to the testator, would not be presumed to reach the executor through the post-office.” In the case where notice is directed to the testator, instead of the executor, the executor is not made liable, on the presumption, that the notice was received by him, but because the holder has done all that the law requires him to do. In the case at bar, the notice to the creditors had been published fifteen months in the same state where the holder lived, before the dishonor of the note; the presumption, therefore, could not, in reason or law, arise, that the notice directed to one man was received by another through the post-office. It was a question, whether in fact, or not, it was received by the defendant, to be left to the jury, without that presumption, and they decided the question. This court will not set aside their verdict. If the holder knew of the death of defendant’s testator, the notice in this- case was not sufficient. Bayley on Bills, p. 286, 287. The charge, therefore, even if erroneous, will not invalidate the verdict; because if the holder was apprized of the testator’s death, the notice addressed to the executor did not bind him, and the verdict was correct. The court will not set aside the verdict when, according to the evidence, it is just, on the ground of improper instructions by the court. Goodrich v. Walker, 1 J. C. 250. Edmundson v. Marshall, 2 Term R. 4. Estwick v. G'dland, 5 Term R. 425. 3 East, 455. 8 East, 352. Dole v. Lyon, 10 J. R. 451. Columb. Ins. Co. v. Depeyster, 2 Caines’s R. 89.
    3. Did the court err, in giving the third charge. This question has been examined, under the subject of presentment. This charge, as it stands on the record, was in fact neither asked for, nor given.
    4. The refusal of the charge asked for by plaintiff’s counsel, is correct. But if erroneous, cannot affect the verdict. The record shows that there was no evidence of presentation of the claim adduced on the trial, to which the charge could apply. At all events, the evidence shows, that the verdict was right.
    5. This court cannot take cognizance of any matter embraced in the plaintiff’s bill of exceptions. The bill of exceptions was not presented, until after verdict and judgment. The jury returned their verdict on the 15th day of November, 1840; the record states expressly, that the bill of exceptions was not tendered until the 23d of November, 1840, (see record, p. 10,) eight days after. The bill does not purport, on its face, to have been taken and signed, pending the trial. So far from this being the fact, the matters therein set forth are recited as having, at some previous time, transpired. The language of the bill of exceptions is not that “ the plaintiff, by his counsel, excepts to the opinion, «fee., prays that his bill may, &c.;” but that “he then and there excepted.” This objection is conclusive. Wilson v. Otoens, 1 How. R. 126. P. and Tyler v. Phillips, 1 How. 572. Walton v. U. States, 9 Wheat. 651.
    
      G. Winchester, on the same side.
    1. The notice of dishonor of the note sued on is not sufficient to charge the estate of the indorser.
    
      
      2. Even if the notice in this case be sufficient under the law merchant, to fix the liability of the indorser, yet notice of dishonor by mail is not a presentment of the claim under the statute.
    If the bill of exceptions is properly taken, and made a part of the record in this case, upon which point I shall add nothing to the argument of judge Smith, than the above two points dispose of the merits, and if either of them be correct in law, plaintiff can complain of no injury or prejudice to his cause by any of the charges of the court below, to which he has excepted, which will entitle him to a reversal of the judgment.
    _ Cook’s deposition, embodied in the bill of exceptions, contains all the evidence of notice of the dishonor of the note, and this notice was all the evidence offered the jury of a presentment of the claim to the executor within eighteen months after publication of notice to present claims. See pages 11 and 16 of the record, by which it will appear that the words, “ Presented to the undersigned as executor of the last will and testament of said Peter Smith, and James M. Smith, deceased, this 1st May, 1839. C. P. Smith,” are no part of the record, and are improperly inserted, there being in fact no such evidence offered or read to the jury. Plaintiff’s counsel in the court below relying wholly on the notice of dishonor, as proof of presentment, and refusing to permit “ these words ” which were inserted on the face of the note, to .be read as evidence of the time of presentment.
    1. The notice of dishonor is not sufficient to fix the liability of an indorser.
    The bill of exceptions shows that the notice was directed not to the executor, but to his testator. It was directed from Natchez to Woodville, more than one year after letters testamentary had been granted, and publication made to all creditors to present their claims.
    Upon this state of facts, the court charged the jury that the grant of letters by a court of record, and the publication of the executor of notice to present claims, was notice to the world of the death of the testator; and that if the holder of the note knew of the death of the testator, notice by mail should have been directed to the executor, and if directed to the testator, is insufficient.
    But plaintiff's counsel contend the first charge is erroneous, because the grant of letters and publication are not actual notice of the death of an indorser, so as to affect the holder of a note in giving notice of dishonor; and yet at the same time, they contend that a mere constructive notice of the dishonor of a note given to fix the liability of an indorser, is such an actual notice of claim to the executor as amounts to a presentment under the statute; which is blowing hot and cold with the same breath. But surely it was correctly left to the jury to say whether the holder knew of the death of the testator, and being a resident of an adjoining county, and dead more than a year, and letters testamentary and publication made more than a year before the dishonor of the note, the jury were correct in finding upon these facts, that the indorser’s death was known to the holder. The law merchant requires due diligence and legal notice of dishonor to fix the liability of an indorser, and as it makes notice by mail, when properly directed and sent, such legal notice, it becomes wholly immaterial whether such notice is ever received or not. For the law making it sufficient notice to bind the indorser, the indorser is bound, provided the law has been strictly complied with, even though the indorser could show negatively that the notice never was received. Hence it is necessary the law, making notice by mail legal notice, shall be strictly pursued, and by that law, the notice ought to be directed to the executor, if the death of the testator was known; and the presumptions from vicinity, lapse of time after grant of letters and publication, were legal evidence of such knowledge properly submitted to the jury.
    If therefore the notice in this case was legally insufficient to charge the estate upon the indorsement, the merits of the case were with the defendant, and plaintiff failed to prove a cause of action, and is unprejudiced and uninjured by any other charges given in the cause, whether right or wrong.
    2. But if under the law merchant the notice of dishonor in this case be sufficient to fix the. liability of the indorser, yet under the statute requiring the presentment of claims within eighteen months after publication of notice, it is not a presentment of the claim.
    That a'bare notice sent by mail of their claims against an estate by creditors generally, would not be a legal presentment so as to prevent the statutory bar whether such notice was ever received by the executor or not, will 1 suppose hardly be contended. Is there any exception to this general rule, in reference to an accidental part of such creditors as happen to be 'the holders of negotiable instruments, falling due after the death qf the indorser, and within eighteen months a.fter publication of notice by the executor? For even as to creditors claiming upon indorsements of negotiable instruments, if the note or bill was dishonored, and notice given before the death of the indorser, such claim would after his death have to be presented to the executor, and so too if the note or bill should not fall due until more than eighteen months after publication of notice to creditors, such claim would have to be presented like all other claims, or it would be barred. Although the law merchant may make constructive notice sufficient to fix the liability of an indorser’s estate, whether the representative of such estate ever received such notice or not, yet it would be most dangerous to 'make such notice a legal presentment of the claim, whether received or not.
    Here, in this case, the only presentment of the claim to the executor, was a notice of dishonor through the mail, and if such notice amounts to a legal presentment it can make no difference whether it was ever received or not.
    The evident meaning of the third charge of the court below is, that such constructive notice is not a legal presentment of the claim. Although the latter part of the charge, (if correctly copied into the bill of exceptions) is incautiously worded, in the haste of a nisi prius trial, yet this court will perceive it was not intended, nor could it have been understood by the jury, to mean that actual notice “ of the dishonor of a note, and that the holder would look to the executor for the debt,” would not be a legal presentment of the claim ; but merely that constructive notice by mail would not be a legal presentment, even if the jury believed that such notice must have been received by the executor. This is the meaning and sense of the charge, as intended by defendant’s counsel and the court below, and as it must have been understood by the jury, because the bill of exceptions expressly states that the deposition of Cook contains all the evidence of a presentment of the claim.
    There was no evidence in the case, that the notice of the dishonor of the note contained in Cook’s deposition, was actually received, nor was it intended to charge that, if actual notice of the claim had been given, this would not be a presentment, but merely that constructive notice by mail, whether received or not, is not a legal presentment; in other words, that such constructive notice is not a presentment if the jury believe it was received ; when there is no evidence before them of an actual notice of the claim.
    If the counsel had intended to request, or the court to charge, that actual notice by direct and positive proof of the reception of notice of the dishonor of a note, and that the holder looked to the estate for payment, was not a presentment, they would have said nothing about constructive notice; and if such had been the charge intended, asked and given, it would have been a mere abstract charge, having no application to the evidence of the cause, as no such actual notice was given, or pretended. Taking the charge literally, and it is correct, that the constructive notice would not be a legal presentment of the claim, even though it were received, for it would be the actual notice by its reception, and not the constructive notice which would make it a legal presentment.
    The charge, in the only sense in which it was applicable to the facts in proof, merely asserts that constructive notice by mail of the dishonor of a negotiable instrument to an executor is not a legal presentment of a claim, nor to be left to the jury as evidence of such presentment, even if they believe it must have been received. See remarks of the court in the case of Reynolds, Ferriday & Co. v. Douglass, et al, in 7 Peters, 563, upon a criticism on the wording the charges given in that case.
    As to the charge asked on the side of the plaintiff, and the one given by the court below, that .the eighteen months within which claims-are to be presented, are to commence from the commencement of the publication of notice by the executor, and not from the end of such publication, it made no difference in this case to plaintiff which way the court charged; as their only evidence of presentment, if evidence at all, was within eighteen months from the commencement of the publication. For the notice of the dishonor of the note was sent by mail before eighteen months had expired from the date of the first publication, and the opinion of the court, therefore, that if it had been after the eighteen months had expired from the commencement, instead of the end of the publication, it would be too late, is no injury or prejudice to the plaintiff's cause, of which he can complain in this court, even if it was an erroneous opinion. If the court had told the jury and bar, that in its opinion an action of trover would not lie for the recovery of a lost note, it would have been quite as much an injury, for which plaintiff could claim a reversal of the judgment, as the opinion that presentment made after eighteen months from the commencement of publication* would be too late, when the only evidence offered by plaintiff as such presentment was a presentment within, and not after such period of eighteen months.
    The bill of exceptions states that “ the promissory note, and the indorsement thereof by defendant’s testator, were read to the jury.” The words, “ presented to the undersigned,” &c. is neither a part “ of the promissory note,” nor is it an “ indorsement thereof by defendant’s testator.”
    The bill of exceptions further states, “ and there was no evidence offered to the jury of presentment to defendants of said claim, .except the evidence of James K. Cook, sending said notice, marked B, through the post-office, of the dishonor of the note.”
    
      
      Montgomery and Boyd, for plaintiff in error, in reply.
    1. As to the notice of protest.
    The witness testified that he had no knowledge of the death of Peter Smith, and therefore directed the notice to him.
    As a general rule, the notice of dishonor must be given to the executor of a deceased indorser; but want of such notice is excused, when the holder did not know of the party’s death. But we contend the notice in this case was sufficient to charge the executor. It was addressed to the deceased, and sent to the post-office at which he was in the habit of getting letters, in his lifetime, which was also the post-office at which the executor usually received his letters, at the time of the protest. If, from all the circumstances, the jury could reasonably presume the executor received the notice, it is sufficient to charge him. 4 Howard Rep. 114. 2 Caines’s Rep. 121. The ground on which notice sent by mail was originally considered sufficient to charge an indorser, was the presumption, that he received it; but now it is deemed sufficient, because thereby the holder has done all that could properly be required of him; and it is unimportant whether the notice was received or not.
    The notice of the grant of letters testamentary, &c., published by the executor in the newspaper, was of no validity, or evidence of anything further than provided by the statute, which required it; that is, notice to the creditors to present their claims, within a particular time, or they would be barred.
    Advertisements in newspapers are never considered notice to any person for any other purpose than that for which they are required, without proof that the party intended to be affected, was in the habit of reading the paper. Publication of notice of the dissolution of a partnership, for instance, is no evidence of notice to a person in the habit of dealing with the firm. It would be to one who had no former dealings with the firm; because it was as good evidence of the dissolution of the firm, as he had of its previous existence. The court, therefore, erred in charging that such a publication was notice to all the world of P. Smith’s death.
    If the case had been submitted to the jury, simply on the question of notice, we would consider it doubtful whether the verdict should be disturbed; but as there are many errors which may have influenced their opinion, a new trial should be awarded.
    On the point of presentment to the executor.
    The bill of exceptions shows that the note, as indorsed, &c., was read in evidence. The presentment is a part of the indorsement, acknowledged by the executor, as appears in the record. This was on the 1st of May, 1839, within eighteen months of the end of the six weeks’ publication, commenced on the 14th of October, 1837. But, independent of this, the presentment, as a legal matter, was perfect, by the notice of the dishonor of the note, forwarded by the notary to defendant, (or rather to the testator,) on the 4th of January, 1839. This court, shortly after its organization in its present form, decided, in several cases, that any notice, which would call the attention of the executor, or administrator, to the subject, was sufficient. An actual presentment was not considered necessary. The cases will be remembered by the court, (for they were numerous,) without further reference.
    The counsel for appellant appear to consider the case as if it stood on exceptions to the judgment of the court, on overruling the motion for a new trial. This is certainly a mistake.
    No exception was taken or tendered to that opinion or judgment. The case rests upon the erroneous decisions during the progress before the jury. And although, according to our law on the subject, a bill of exceptions might have been filed to the opinion overruling the motion, yet the previous errors, if sufficient, authorize the appeal or writ of error on the points occurring prior -to that motion, as fully as if no such motion had been made. The effect of our statute is, that if you desire to appeal from a judgment on a motion for a new trial, you must embody the whole case in a bill of exceptions. But you are by no means, compelled to take that course. You may waive all objection to the erroneous ruling on the motion, and insist on the other matters of error in the record.
    The bill of exceptions does not purport to be under the statute in regard to new trials ; indeed it shows on its face, that it was all taken or finished before the jury retired, and of course could have no reference to the motion. The counsel are wrong in stating that the bill of exceptions was not taken till several days after the trial. It positively states that it was finished, signed, &c. before the jury retired, although not filed with the clerk till after. This was correct, for if the exceptions are taken during the trial, the bill may be filed at any time. So, in reference to the language closing the bill, being in the past tense, this has been again and again decided by this court to be correct, and the authority is based on decisions of the supreme court of the United States, which have been pressed upon this court, till the subject is exhausted.
    If (he. acknowledgment of notice by the executor on the face of the, note, is considered not to be before the court, then the charge of the judge, as to the presentment within eighteen months of the first publication of notice, falls under the rule laid down in 4 How. 387, and II Wheat. 59, and being erroneous, though on an abstract point, will entitle us to a reversal of the case.
   Mr. Justice ThacheR

delivered the opinion of the court.

This case comes up by writ of error to the circuit court of Wilkinson county.

The action is founded upon the indorsement of a promissory note by defendant’s testator. The note matured, and was protested for nonpayment, after the decease of the testator, and notice of nonpayment was addressed to the testator, at the post-office nearest his place of residence, in his life time, by the notary, who testified that he was not aware of the death of the indorser when notice was so addressed. Anterior to the notice, letters testamentary had been granted to the defendant.

We think that the case presents itself to us upon a bill of exceptions to the ruling of the court below during the trial. The bill bears internal evidence of its character, shows that the exceptions were taken to the opinions of the court at the time of their delivery, and before the jury retired; and embraces all the essentials .of a bill of exceptions, to a ruling of the court pending the trial. The statement, of the clerk in the record cannot contradict the certificate of the judge presiding at the trial. There is no other evidence that a motion for a new trial was overruled, than from the clerk’s statement.

The first charge of the court, to which an exception was taken, was as follows ; “ that the grant of letters testamentary by the court, and publication of notice to the creditors, were nqtice to all the world of the death of the testator.” This charge involves two considerations. The grant of letters testamentary is a matter of judicial record, and, upon the general rule, is notice to all who are directly interested in its subject-matter, and who have a right to object to the proceedings, and appeal from the judgment. This rule is founded upon the general principle, that there must be some period put to the continuance of litigation. All who were not directly interested in the grant of letters, were strangers to the proceedings, and took no notice. The law makes this a notice, too, to those concluded thereby, of the grant of letters, but not, ex necessitate, of the death of the testator. A grant of letters of administration is, in general, only prima facie evidence of the intestate’s death, and it may be impeached by witnesses to the fact. Publication for creditors to present their claims in due time to the executor is no further notice to them than for the particular object of the statute. If not acted upon by the creditor, his claim against the estate is barred. It is the act of one party, and affects another in one particular only. The privity of the parties, growing out of such notice, extends solely to the subject-matter of his claim upon the estate, and has no reference to the death of the testator. The charge was much too broad, and trenched widely upon the privilege of a jury to find a fact in the case. It might be notice by which to infer the death to all persons to whom a knowledge of the existence of such publication could reasonably be brought home. It might be prima facie evidence of such notice to persons residing in the immediate neighborhood of the publication. But in both these instances, positive proof of the want of such notice would be admissible, and the whole, without considering the extent of such notice upon the rights of parties interested, would fairly be matters for the consideration of a jury to infer in a holder a knowledge of the death.

The third charge of the court below, and excepted to on the trial, is as follows ; that the presentment of a claim against the estate, must be an actual presentation to the executor, and a constructive notice of the existence of the claim, through the post-office, of presentment for payment and dishonor, would not be notice of the claim, although received by the executor.” This we also deem to be erroneous. There are two leading statutes regarding claims against an estate. The one has reference merely to their presentment, and the other to their payment. The presentment would be good before or after publication, if within the limited time, but the payment cannot be enforced until a subsequent period. What is the object of the presentation'? Certainly, nothing more than to inform the executor or administrator of the existence of the claims against the estate. What follows upon a presentation of such claim? Nothing necessarily, but the notice to the representative of an estate of its existence. Nothing but the knowledge of that fact. The exhibition of the claim does no more; it does not, ipso facto, bind the estate for its payment, because the representative may challenge it' upon its merits. It simply stops the bar, which would otherwise run against it by limitation. It would therefore, be legitimate to show a notice of such a claim to an executor or administrator, by any legal evidence that would establish the fact of their knowledge of its existence to the satisfaction of a jury, because the design of the statute would be thereby accomplished.

The charge-requested of the-court below, by the plaintiff in error, and refused and excepted to, was as follows; that if the claim sued on was presented to the executor within eighteen months from the time of the last publication of the notice made by the defendant, as executor, it was sufficient, and it was not necessary to present it within eighteen months from the first insertion of such publication.” The court below charged that it was necessary to present the claim within the eighteen months from the first insertion. The language of the statute, H. & H. 413, s. 92, bears a different interpretation. Publication may be commenced any time within two months after the grant of letters, and shall continue to be published once a week for six weeks, or longer, if the probate court shall so direct. The claims must be presented within eighteen months, for creditors resident in the state, and having no agent, “ after” publication of notice for that purpose, or they'are forever barred. Legal publication consists of the number of insertions ordered by the court. Any number less than the required number of insertions, at the periods assigned by law, falls as far short of the meaning of publication in the statute, as it would of giving, a proportionate degree of publicity to the notice in point of fact. The term of publication must be fully complete and ended, before the obvious intention of the law is answered, and it is a prerequisite to the commencement of the limitation of claims against an estate.

For the above reasons, we think the court below erred in the several charges given and refused, and to which we have adverted.

• The judgment must be reversed, and a new trial awarded.  