
    William Phipps & others vs. Silas Chase.
    Where an indorsed note, left in a bank for collection, is not paid by the maker at maturity, the cashier of the bank, not knowing the place of the indorser’s residence, oes not use due diligence to ascertain it, by merely inquiring therefor of a person naving temporary charge of the post office in the town where the bank is established; and therefore if due notice of non-payment is not given to the indorser, he is discharged.
    Assumpsit by the indorsees against the indorser of a promissory note, for $254, signed by Chase &. Brown, dated March 29th 1842, payable to the defendant, or his order, in six months from date, at the Millbury Bank.
    At the trial in the court of common pleas, before Warren, J., the only question was, whether due notice was given to the defendant of the non-payment of the note by the promisors at maturity. It was admitted that the defendant, when the note was made, resided in the town of Millbury ; but that, in April 1842, he removed into the town of Sutton, where he has ever since resided: That the note, on the day when it was payable, was at the Millbury Bank, and was not paid: That after the closing of the bank on that day, the cashier of said bank addressed a letter to the defendant, giving him notice of the dishonor of the note and demanding payment of him ; and that this letter was directed to the defendant at Millbury, and was deposited, on the same day, in the post office at Millbury.
    It was also admitted that said cashier did not know of the 'emoval of the defendant from Millbury, and that, when he deposited the letter in said post office, he .inquired of a person then in the charge of the office, where the defendant resided, and was informéd that he lived in Millbury. No evidence was offered tending to show that the defendant ever received said letter.
    The plaintiffs offered evidence to show that it was the uniform usage of the Millbury Bank to give notice to indorsers of notes, residing in Millbury, (where the bank is established,) of the dishonor of such notes, by depositing notices in the post office there. The judge rejected this evidence, and instructed the jury that, upon the foregoing facts, the plaintiffs were not entitled to recover. A verdict was returned for the defendant, and the plaintiffs alleged exceptions.
    
      Miles, for the plaintiffs.
    
      Barton, for the defendant.
   Shaw, C. J.

The note being payable at the Millbury Bank, and being at the bank at maturity, with authority to the cashier to receive payment and give up the note, the non-payment of the note during bank hours, on the last day of grace, was a dishonor ; and the only question is, whether due notice was given to the defendant, to charge him as indorser.

Had the defendant continued to reside in Millbury, we think a notice to him, by a letter put into the post office in the same place, would have been insufficient. Peirce v. Pendar, 5 Met. 352. But in fact he had removed, several months before, into the town of Sutton; and the question is, whether the cashier of the bank, acting as agent of the holders, used due diligence to find what place he had removed to. If the place of his actual residence could have been ascertained by due inquiry and reasonable diligence, it was the duty of the cashier to give him notice personally or by mail, at the place of his actual residence If it could not be ascertained, or if he had gone abroad, notice should have been given at his last place of abode. But the court are of opinion that no proper inquiry was made, or diligence used. No inquiry was made at his last place of residence in Millbury, nor of the other parties to the note, nor of any agent, neighbor or relation, nor of any person likely to know the fact; but only of a person acting as a substitute for the postmaster at the time; and there is nothing to show, and no reason, from his situation, to infer that he was a fit person to make such an inquiry of.

Exceptions overruled.  