
    No. 873.
    Mrs. C. Shaw v. J. S. & R. E. Neal.
    Notice of protest deposited in the post-office at New Orleans, La., during the time it was in the possession of rebels in arms against the Government of the United States, addrossed to an endorser residing in tho town of Madison, Indiana, is no notice to the endorser, the mail service between the two places being interrupted by the war.
    To bind the endorser, the holder should have sent the notice tis soon as communication was opened between the two points.
    In the absence of any proof, the Court will presume that the endorsement was made before hostilities commenced between the United «States and a portion of her citizens ongaged inarmed rebellion against their government.
    A EPEAL from the Fourth District Court of New Orleans, Tliéard, J.
    
      Harrison & Hunlon, for plaintiff and appellee.
    
      Eggleston & Hart, foi defendants and appellants.
   Hyman, O. J.

Defendants are appellants from a judgment rendered against them as endorsers of a promissory note.

The note was dated at New Orleans, April 6th, 1861, and was made payable to the order of defendants at the counting-house of Messrs. Hillard, Summers & Co., in said city, on the 1st March, 1862.

It was endorsed by defendants. On its maturity it was presented for payment at the place where it was made payable, and was protested for non-payment.

The notary who protested the note put, on the day of its protest, a written notice of protest in the post-office at New Orleans, addressed to defendants at Madison, in the State of Indiana, their residence.

At the time of protest New Orleans was in the possession of rebels, and the post-office was under their control.

It •was then impossible for mail communication to exist between New Orleans and Madison in Indiana, and the putting the notice of protest in the New Orleans isost-office was a vain act.

No notice could reach defendants by thus depositing the notice.

To hold the endorsers bound, the plaintiff should have (as soon as communication was opened by the capture of New Orleans) sent notice of the dishonor of the note to them. There is no evidence that she has sent such notice. <

Plaintiff assumed in argument, as if proved, that when defendants endorsed the note they were in territory occupied by rebels in war against the Government of the United States, and that they, before its maturity, removed from the territory so occupied to their residence, a part of the United States not in the possession of rebels ; and she contends that, as defendants endorsed the note in a territory occupied by rebels, they should have remained therein to receive notice of its dishonor; and that they, not having done so, but having removed to a part of the United States where, by reason of the war, notice of the protest of the note at its maturity could not then be sent to them, are bound as if notice had been transmitted to them.

The note was made before there were hostilities between the government and its citizens, and it cannot be said that there was a war between rebels and government before hostilities commenced.

It is not proved when defendants endorsed the note—whether before or after hostilities commenced—and, without proof, we cannot presume that they endorsed it after the commencement of hostilities.

It will be proper to decide on the position assumed by plaintiff when facts are proved in a case that require an examination of the position.

It is decreed that the judgment rendered in this case by the District Court be annulled, avoided and reversed.

It is further decreed, that the suit be dismissed.

The plaintiff to pay all costs.  