
    Wilcox & Fearn, Appellants, v. M’Nutt.
    The invariable rule is, that when the parties reside in the same city or place, notice of the dishonor of bills or notes must be personal, or something tantamount, such as leaving it at the dwelling-house or place of business of the party, if absent.
    -If the party to be served with notice of protest resides in a different place or city, it may be sent through the post office, to the post office nearest the party entitled to notice.
    When the party and his family are temporarily absent at the time of protest, notice through the post office of the residence of the party, is not sufficient; the notice must be personal, or something tantamount, such as leaving it at the dwelling-house or place of business of the party temporarily absent.
    No custom of protesting by notaries public, in violation of law, can change, or in any way affect the application of the law itself.
    APPEAL from the circuit court of Warren county.
    This cause was tried before the Hon. George Coalter, at the May term of said court, 1837. It was an action of assumpsit, against the appellee as indorser of a promissory note, for 13,033 dollars, drawn by one James C. Mitchell. The plea was non-assumpsit, a verdict for the defendant.
    It was proved on the trial, that the notary public gave the ap-pellee notice of protest, through the post office of the city of Vicksburg, where the appellee (the endorser) resided. Witnesses were also introduced to prove that such was the custom of giving notice of protest among the notaries of Vicksburg.
    The court instructed the jury, that if they believed the defendant below was a resident of Vicksburg, and had a dwelling-house there, the notice must be personal, or by leaving a copy thereof at his house, or place of business; and that no custom among the notaries of Vicksburg, however general, of giving notice to endorsers resident therein, through the post office, would legalise such mode of giving notice.
    The counsel for the plaintiff moved the court to instruct the. jury that, if defendant was temporarily absent with his family, notice through the post office of Vicksburg was sufficient; which instruction the court refused. The plaintiffjtendered a bill of exceptions to the opinion of the court, and took the cause up by appeal.
    Harrison, for appellants.
    Contracts are said to be either express or implied; both are equally binding upon the parties. The principal difference between them is to be found in the different mode by which each is usually established; an express contract being usually established by positive and direct testimony. Whereas an imperfect contract is usually established by circumstances from which the particular contract is inferred.
    It will not, I presume, be contended that the endorser of a note or bill may not waive, by express contract, his right to personal notice of protest. Such waiver is made every day by endorsers, when they agree by writing at the foot of the note that they will acknowledge notice at a particular post office.
    Such agreement is certainly a waiver of right to personal notice. If, then, this may be done by express agreement, so may it be done by implied agreement. The only difficulty is in establishing such agreement; but when established, the results which in law follow the one, follow the other; the incidents of each are the same.
    Starkie, in vol. 3, 1038, says, “In many instances evidence of custom and usage is admissible for the purpose of annexing incidents to the terms of a written instrument, concerning which, the instrument is silent.” And that in commercial affairs, and in the usual transactions of life, a different rule and practice would be attended with great inconvenience.
    It had been the practice of the banks and of business men in Vicksburg, for some time before the protest in the present case, to give notice of protest to endorsers resident in Vicksburg, through the Vicksburg post office. This custom was general in that city, and was so understood by all.
    I shall not contend that' this practice or custom changed the rule of law, but that persons in Vicksburg, acquainted with that custom and dealing in paper, negotiable and payable at either of the Vicksburg banks, are presumed to sanction such practice and to contract with an eye to such practice, unless at the trial of such contract, they shall expressly stipulate to the contrary. In Jones v. Hales, 4 Mass. Rep. 253, the court say in reference to a usage of the bank, “ This usage is evidence of the defendant’s agreement, proper to be submitted to the jury, to infer from it the agreement of the defendant. Evidence of this kind, and for this purpose, is not to establish new law, but to prove that the defendant has waived a condition implied by law for his benefit, and has consented to other terms, to which, without question, he might have expressly agreed.”
    In Lincoln and Kennebeck Bank v. Page, 9 Mass. Rep. 157, the court say, “ But as privileges reserved and implied, for his (the endorser’s) special benefit, he may waive or modify them. When this is done by an express stipulation, there can be no doubt, and when he continues to endorse notes, and to deal with a bank, where by known usage, or by the by-laws, these privileges have been taken to.be waived or modified, his dealings and contracts are to be understood and enforced with the constructive effect of such usage, or by-law.”
    In Blanchard v. Hilliard, 11 Mass. Rep. 85, it was decided, that the usages of a bank, at which the parties to a promissory note are accustomed to transact business respecting the time of demand and notice on such notes, may be shown as evidence of the assent of the parties to such usage, and of their waiving their legal claims.
    In Whitevell v. Johnson, 17 Mass. Rep. 452, the court say (in a suit to charge the endorser) the demand upon the promiser, in that case, as made, would have been wholly nugatory and insufficient, but for the usage of the bank.
    In the City Bank v. Cutter, 3 Pick., the same doctrine is held.
    In the case of the Bank of Columbia v. Renner 9 Wheat.. 581, the court go fully into the doctrine of usage, and its effect upon contracts, and Sustain the position here contended for, to wit, that banks may rightfully establish such usage, and that persons dealing at such bank are supposed to deal with reference to such usage, the attention of the court is particularly directed to this case.
    
      In the Bank of Washington v. Triplet, &c., 1 Peters, 25, the court say, “ It is the usage of the banks in the District of Columbia, to demand payment on the 4th day of grace. This usage is sanctioned by the decisions of the supreme court, and is equally binding upon parties who were not acquainted with the usage,” &c.
    In Smith v. Wright, 1 Gaines’s Rep. 43, the court decide that a commercial usage will be considered as established when it has existed a sufficient length of time to have become'generally known and tq warrant a presumption that contracts are made in reference to it. See also Snowden v. Warder, 3 Rawle, 105.
    A variety of other cases might be- referred to in support of the position here contended for, were a further reference deemed necessary.
    These authorities show, that banks may establish usages differing from the rules fixed by law; that such usages, when established and understood, are obligatory upon persons dealing with them. '
    By the common law, promissory notes are payable upon the third day of grace, and demand of payment should be mode on that day, and that the endorser is discharged unless demand be made upon that day; yet the supreme court of the United States decide that a usage allowing four days of grace is lawful, and that a demand made pursuant to such usage, is sufficient to fix the endorser, and the rule is the same whether the endorser were acquainted with the rule or not.
    Surely the cases cited are at least as strong as the one now under consideration; they all show that men are supposed to contract with reference to a known usage.
    The plaintiff below introduced proof, showing this usage not only of the Planters’ Bank in Vicksburg, but of the Commercial and Rail Road Bank at the same place; that it was also the practice of the notaries in that city, and had been for a long time before, to give notice of protest through the post office to endorsers resident within that city. The note sued on was payable at the Planters’ Bank in that city, the defendant resided therein, and must no doubt have known of this usage. Surely the court below should not unceremoniously have excluded all such evidence from the cause, but should have submitted it to the jury with instructions, that if they believed the evidence, and that the defendant was acquainted with such usage, they might infer therefrom his consent to receive notice of protest through the post office.
    The court not only excluded the proof already in, but refused to hear any further testimony of the same kind.
    Suppose the plaintiff had in addition to the proof of usage, proved that the defendant knew of it at the time of his endorsement, and that he made no objection thereto, would not this have been competent to go to the jury, that they might or not according to the weight of the evidence, find that he agreed to such usage, and consented to receive notice of protest in that mode? Most certainly.
    The court, however, refused to hear any further proof of the kind offered.
    Holt, for appellee.
    The first error assigned is, that “ the court erred in giving the instructions as asked for by defendant.”
    The defendant was a resident of the city of Vicksburg at the date of the protest of the note, and the testimony of the notary was, that he had given him notice of the demand and non-payment of the note through the post office, and had not given him that personal notice which the law required. The plaintiffs sought to avoid the effect of this testimony by proving or attempting to prove that since May, 1836, it had been the custom in Vicksburg to give notice to endorsers living in the city through the post office. This evidence, at the instance of defendant, was rejected, which is one of the opinions of the court complained of in the first assignment of errors.
    The evidence was incompetent for many reasons. A custom of twelve months’ standing, existing in a single town, could not overthrow a positive rule of law. It was a custom which had obtained among the notaries alone, adopted, no doubt, for their personal convenience; it was not the custom of the bank where this note was payable; the cashier who was examined expressly repudiates it, and the notary states that he acted from his own views of the law, and not from any direction of the officers of the bank: it is, therefore, wholly unlike the cases cited in the brief of appellant’s counsel, where the courts held, that persons dealing with banks having certain known and established usages in business, would be held as contracting in reference to them, and be bound accordingly.
    Even if the usage of the bank to give notice to endorsers through the post office had been established, (which is not pretended,) still there was no ground to assume that defendant, in endorsing the note, acted in reference to any such usage. The note was drawn and endorsed in January, 1835, and the earliest existence of the usage sought to be proved by plaintiffs was in May, 1836, sixteen months after this contract was made.
    Another reason why the evidence of this usage was properly rejected is, that the declaration contains no allegation under which such testimony could be received. The averment is, that “ defendant had due notice” — meaning, of course, that notice was given according to the general rules of law — and defendant was not notified by such an averment that any proof or local custom in conflict with the general law, would be offered. In 3 Leigh’s Rep. 197, this question is fully examined, and the court decided that there could be no evidence received of a particular usage, variant from the general law, without corresponding allegations in the pleadings of the party.
    It would present an anomaly strange indeed in the history of jurisprudence, if the indolent habits of a few notaries public in a single town, persevered in for twelve months, could repeal a rule of law which has been upheld for its wisdom and certainty for centuries.
    The other charges to the jury, given at the instance of defendant, embody, with some slight difference of phraseology, the general propositions of law, that when the party to a negotiable instrument protested resided in the same town in which such protest is made, notice must be given, to him personally, or by notification left at his dwelling-house or place of business, and that notice by letter through the post office will not charge him. There cannot be found a decision, or even a dictum to the contrary, in England or America. 3 Kent; Bailey on Bills, 277, (edition of 1836;) Ireland v. Kip, 10 Johns. 490-2, &c.; 11 Johns. Rep. 231; Smedes v. Utica Bank, 20 Johns. Rep. 372; 1 Conn. Rep. 329; 17 Martin, 137; 2 Peters, 101-2; 4 Wash. C. C. R. 464-470. The same doctrine is recognised in Walker’s Rep. 529-30. An accommodation endorser is entitled to the strictest notice of dishonor. 4 Cranch, 164.
    This is the only question involved in the charges given and in that refused by court. There can be no pretence that defendant’s “ temporary absence” from Vicksburg dispensed with notice in the mode prescribed bylaw; it dispensed with personal notice, no more. The notice should have been left at his dwelling-house or other place of business — so are all the authorities. It was in proof that Mrs. M’Nutt was generally absent at Jackson with defendant, but it is not stated that she was absent at the time of protest; or if absent then, is it shown that defendant’s family, appointed by law to receive notice in his absence,.was not at his dwelling-house? The notary did not call at his house, or make any inquiry for him or his family. Although defendant was himself “temporarily absent,” this court cannot presume that his family was absent — that his dwelling-house was locked up, and that there was. no person there to receive notice. This, if true, should have been shown affirmatively by plaintiffs. The notary did not even attempt to give him notice legally. If the notary, instead of giving notice through the post office, had sought defendant at his dwelling-house and found him and family absent, and no person there to receive notice, it would only have been the exercise of due diligence, which would have charged defendant, but it would not have been notice in fact, nor could it have been proved under the averment of “ due notice,” which is found in this declaration. 3 Barn. & Aid. 619; 2 Littell’s Rep. 185; 3 Greenl. 233; 6 Mass. Rep. 386.
   Mr. Justice Peat

delivered the opinion of the court.

This was an action of trespass on the case in the court below against the appellee, as endorser of a promissory note for 13,033 dollars, drawn by one James C. Mitchell. The trial was had upon a plea of non assumpsit, and a verdict and judgment for the defendant. From which, the plaintiffs have appealed to this’1 court.

The errors assigned are:

1. The court below erred in the giving of the introductions asked for by the defendant.

2. The court erred in refusing to give the instructions asked for by the plaintiffs.

3. The court erred in refusing to permit the witness, William Everett, to answer the questions as put to him by the plaintiffs’ counsel.

4. The court erred in excluding from the jury all the evidence offered in reference to the established custom of giving the en-dorsees resident in Vicksburg notice of non-payment and protest.

The instructions mentioned in the first assignment of error are:

1. That the jury must disregard all the statements of the different witnesses showing, or conducing to show, the existence of any custom or practice, however general, of giving notice of protest through the Vicksburg post office to endorsers resident' in Vicksburg.

2. That if the jury believe the note sued on was, on the 24th day of January, 1837, protested at the Planters’ Bank in Vicksburg for non-payment, and that defendant was then a resident of Vicksburg; and no other notice of said protest was given to him than by a letter addressed to him at Vicksburg, and placed in the Vicksburg post office, that such notice is insufficient to charge him, and they must, find for the defendant.

3. That if they believe the defendant was, at the time of the protest of the note sued on, a resident of the city of Vicksburg,having a dwelling-house therein, that notice of said protest must, have been given to him, either personally or by notice left at his dwelling-house or place of business in said city; and that no custom which may have obtained among the notaries of Vicksburg, of giving notice to endorsers resident therein through the post office, will' legalise such mode of giving notice or charge the defendant.

We have no doubt of the correctness of these several charges. The invariable rule is, that when the parties reside in the same city or place, notice of the dishonor of bill or notes must be personal, or something tantamount, such as leaving it at the dwelling-house or place of business of the party, if absent. If the party to be served with a notice, resides in a different place or city, then the notice may be sent through the post office, to the post office nearest the party entitled to notice.

It would be extremely embarrassing to suffer the rule to fluctuate, by making exceptions which would lead to uncertainty. It is of the utmost importance to mercantile transactions, to have a certain and stable rule in relation to notices. 20 Johns. Rep. 372.

It is dangerous in all cases to disregard the well settled law upon this subject, and rely upon custom and usage; because no usage or custom can change the rule here laid down, unless the party to be affected be conusant of the usage, and has in other cases conformed to it. 4 Mass. Rep. 252, S; lb, 157.

In the case of Blanchard v. Hilliard, 11 Mass. Rep. 88, the court say: “ We have in several instances recognised the usage of banks at which the parties have been accustomed to transact business, not as forming rules for our decisions, but as evidence of the assent of the parties to such usages, and of their waiving their legal claims.”

This position could by no means authorise two or three notaries to set up their illegal acts in giving notice of protested notes and bills, as a custom or usage, which is to change the settled law upon this subject. Even if such usage had legally existed, as was urged by the counsel for the plaintiff’, it could not, from the case above cited, have affected the present appellee; because he could not have been cognisant of an usage which did not exist at the time of his endorsement of the note sued on.

The instructions to. the jury moved by the counsel for the plaintiff, and the rejection of which is assigned as the second cause' of error are: That the jury must find for the plaintiffs, provided they believe from the evidence, that the defendant and his family were, at the time of the protest, temporarily absent from their residence in Vicksburg; and that the notary gave to the” defendant, on the day of the protest, and during such temporary absence, written notice of such protest, by means of such notice being deposited in the Vicksburg post office, directed to him at Vicksbu rg.

These instructions were properly refused. The notice must be personal in such a case, or something tantamount, such as leaving it at the dwelling-house or place of business of the person temporarily absent.

As to the fourth error assigned, we are satisfied that the court below acted correctly in arresting the testimony of Everett. It was only tending to establish a custom among the notaries of Vicksburg, which, were it even established, could not, in our judgment, affect the rule of law we have before recognised. No such custom, by public officers, in violation of law, can change, or in any way affect the application of the law itself.

The judgment of the court below must be affirmed with costs.  