
    WILLIAM STAMPS vs. JOHN BROWN.
    Notice of protest, left at the nearest post office to the residence of tho endorser, where ho does no reside in town, is sufficient. C. gave two promissory notes to 33., which 33, endorsed to S., and S. sued both 0. andB. on one of the notes, and obtained judgment against (J’s. administrators, but was nonsuited in the case against B: Ó. having died insolvent, S. had the amount of Ins judgment and of the remaining note both allowed, by tho commissioners of insolvency, and received a dividend of 72 cents to the dollar, on his whole demand, embracing both the judgment and the noto. In tho caso of S. against 0. on the second note, the amount of the 72 per cent dividend should be credited on each claim, pro rata, and not to appropriate to the judgment first, and' then the balance to the 2d note.
    ABSTRACT AND BRIEF OF JOHN HENDERSON, ESQ,.
    Edith Therrill, and afterwardsat the time of her death,Edith Cruise, gave two promisory notes to John Drown,both of which were endorsed by him to Wm. Stamps. On the first note suits were brought by Stamps against the maker and endorser, judgment obtained vs maker’s administrators, but a non-suit was suffered in suit vs. Brown, for want of proof of dis-honour and notice. The maker Edith Cruise, having died insolvent, Stamps had his judgment and note both allowed by the 'commissioners of insolvency, and received a dividend 0/ seventy-two cents seven mills to the dollar, on his whole demand, emjá’acing both the judgment and the note. He then sued Brown as endorser on the 2d note, and these facts appearing in evidence, we ensistedior Brown, (that if liable as indorser at all,) the extent of his liability wes twe.ity-seven cents three mills to the dollar, with interest on this proportion from the date of the dividend. But Stamps claimed the right of/appropriating the money received from Cruise’s estate to the payment 0/ his judgment in full, and of crediting us only, with what remained, j
    
    The court sustained Stamps /n his position, and charged the jury, to which, (with one other point,)/we took exceptions.
    We concede the rule of la\y — That if a debtor owing his creditor several demands, makes a gene'al payment, and does not direct on which, demand he claims to be credited, that the creditor may enter it on which he pleases: But we say this rule does not apply to the present case.
    1st. Because this payment is one coerced and appropriated by the law, and bears no resemblance to a general payment by the debtor. Who so stupid as not to perceive that a creditor having several claims, cannot sue on one, collect it by execution, and then claim to enter the credit (as a general payment) upon a clain not sued on?
    2nd. This appropriation of the effects of an insolvent estate made by the law,' is spedficccdly rnadj in part payment of each particular claim, or rather upoh each'dollar, c each claim.
    Revised Code, page 5!, provides “that the commissioners of insolvency'shall report on oafia list of all the claims which shall have been laid before them with the sur,s they shall allow on each respective claim. &c. &c. It further provide!, “that the probate court shall order the assets of the estate, (except, &c.) to be paid and distributed by the exec-tor or administrator, to; and imong the creditors who shall have made out ibeir claims, &c. in proportion to the sum unto them respectively due and owing.” It further provides, “that the executor or administrator after? the final apportionment of such distribution among the creditors of the testator or intestate as afotesaid, shall be liable to the creditors for their respective shares in such distribution.” In Sec. 104, same page, the statute speaks of the creditors “dividend,”■ and if all this language does not imply specific payments or specific claims, then language is inadequate to convey this idea. Hence! conclude a “dividend” is “appor-tionedP to“each respective claim,” wfich, if true, Mr Stamps or the circuit court have no right to “apportion1’’ t otherwise, to our prejudice as an endorser. Strong, case in point, 4 IViass. 96-97. 7 Pick. R. 291, cited in 7 No. Am. Jurist, p. 150.
    3d. The principle we urge, of a speciic credit on the partial payments of each particular claim, is a rule and principle arising from necessity, and as necessarily excludes the rule'of law' urged by defendant Stamps. The policy of our laws has decreed that,from the moment of a debtor’s death, insolvent, his effectsare a fund fo the partial payment of each claim against the estate; leaving no means o discretion in the creditor to get more than his specific share, (except, &c) His debtor being dead, there is no one to exercise that discretion about entering credits contemplated in the rule of law contended for by Stamps.
    The executor or administrator of an insolvent estate has no right or dis-cretionin directing the creditor in entering credit of partial payment, because the law has fixed both the extent of payment, and on what Claim to he paid. The executor or administrator can make no general payment authorising the exercise of that discretion in the creditor in entering his credit, contended for by Stamps — because, all the payment made by the executor or administrator, is but as a trustq of a particular fund, to he appropriated and “apportioned” in part paynent of specified claims.
    For alll these reasons, we say, that this p.yment of the dividend was a specific payment on a specific claim, appointed by the law,and we claim the benefit of the credit on our note q‘ 72 cents seven mills to the dollar.
    Stamps received 72 cents 7 mills on this rote, on which we are now sued, to our use, (that is if we are liable for tie note at all;) and which mo-aey received to our use is good as set off. 17 Mass. 66.
    
      The utmost we could have been liable for, was the whole amount of this note, on which we are now sued, and at the moment of the maker’s death, her estate was good, and holden for the amount of 72 cents 7 mills on '¿he dollar. If Stamps had chosen to hold us liable for the whole amount, we should have drawn this dividend, but if he chose to draw the dividend, it is so far a payment of the debt for which we were collaterally liable; audit should not be permitted Stamps to juggle us into a security for loth his claims, when we stand chargeable for but on one.
    On the subject of notice to Brown as endorser, we insist that if defendant had resided in the vicinage of Woodville, though not in town, that he was entitled to a personal notice or its equivalent notice, left at his house; and that a notice deposited in the post office, was no notice — 10 Mass. R. 84. See practice of bank in Boston, 17 Mass. 450. Full in point, 10, J. R. ¿00 — 2 Pet. Rep. 104, 5 — 11 J. R. 231. Full in point. 3 Lit) 498, (see .5 Day. Rep. 534.) See Adams R. 140, and 3 Conn. J?. 489. 1 Southard’s Rep. page 1 — 20; Johnson’s Rep. 382, 3; 1 Pick. Rep. 411. The principle as decided in these authorities, we deem conclusive. On this point, in the bill of exceptions, it will be considered that there is no question of fact relative to the usage of the Bank in giving its notices, nor any question of fact whether or not the notary public could not find the residence of the endorser, and went to the Post Office as his last remedy. But the simple inquiry is, whether a deposite of notice in She Post Office, directed to one residing in its vicinity is alone evidence of notice.
   OPINION OF THE COURT — by the

How; J. R. NICHOLSON.

This is an action of assumpsit brought against Brown as endorser of a promissory note for ‡1000. The plea is non assumpsit and payment. There are too points raised by the bill of exceptions for the consideration of the court.

1st. The defendant’s counsel called on the court to charge the jury, that if they believe from the testimony, that at the time of the supposed dishonor of the note by the maker, the endorser, this defendant, resided in the vicinage of Woodville, and nearer to the post office of Woodville than any other post office; and if they believe from the testimony that said defendant had no other notice of the dishonor of said note, but a written notice ditected to him at Woodville, and deposited in the post office, at Woodville,, that said notice was not sufficient to charge said endorser: which instruction the court refused to give; but charge the jury, that if they believed defendant’s residence at the time of the dishonor of said note was nearer to the post office at Woodville than to any other, but that his residence was mot in Woodville, that then a notice of the dishonor of said note, addressed to him at Woodville, and deposited in the post office at Woodville, would be properly given, and sufficient to charge him as endorser. Where the endorser resides in the same town with the maker, the notice of non-payment mustbe personal; 10 John.490;2 Peters, 101; 11 John., 231. The same doctrine is laid down in 20 John., 283, 4; although no good and 'substantial reason can be given why an endorser residing without the limits of the town or city should not be entitled to as strict' notice as one residing within the limits of the town; yet, for the sake of con*enience, a line must be drawn, beyond which, a notice by mail, if sent with din^Qce is sufficient: depositing a letter, then, in the, nearest post office to the re«_ deuce of the endorser, when he resides out of town, is making use of due diligence in the eye of the law. 1 Pick., 411. The court,then, did not err in the instructions which it gave to the jury on this point; nor in refusing ■those asked for by the defendant’s counsel.

2dly. It appeared in evidence on trial that the maker of the note, Edith Theril, made two notes payable to said Brown, and endorsed by him to plaintiff, the first of which notes being first due, was sued on against her and said Brown, in separate actions, and a judgment obtained against her, •hnd a non-suit entered against Brown, on account of a defect in evidence of the dishonor of the note by the maker, and of notice to defendant as endorser. — That afterwards Edith Theril died insolvent, and plaintiff filed a claim before the commissioners of insolvency for about $2600 — being the amount of said judgment and of the note now in suit. That the estate of Edith Theril paid 72 cents 7 mills in the dollar, on said claims, which made about $1,800: That plaintiff claimed the right to credit said amount first to the entire discharge of thejudgmentobtainedon the first note, and then so far as it would go to the credit of the note now in suit. Wherefore the counsel for the plaintiff moved the court to instruct the jury, that the plaintiff had a right to credit the said sum of $1,00 first to the entire discharge of said judgment, and then to the note now in suit, so far as if would go; which instruction the court 'gave. The defendant’s counsel then called on the court to instruct the jury, that if 72 cents, 7 mills was paid by said Theril’s estate, on said entire claims, including the note now in suit, that that amount on the dollar should be credited on each claim, respectively, and not to the discharge of the said judgment first, and then so far as it would go on this note, which instruction the court refused. It will be recollected, that a claim in a judgment against a decedent’s estate, ¡requires different proof from a claim on a promissory «ote- The evidence might have established the one,and not the otM'. Whenever the estate of the deceased is declared insolvent, his ensote are a fund for the partial payment of each claim against the est^e, leaving no means or discretion in the creditor, to obtain more fian his specific share, or any volition as to its application; because the law has made the application.

But the true principle on which to test this matter is this: suppose Brown, the defendant here, had taken up this note, (as he had a right to do, being the first endorser,) cou*-1 he have presented his claim against Theril’s estate, and would b> have been entitled to a pro rata dividend? Most assuredly he would Stamps would have got the whole of the claim now in suit, andI(S rateable dividend on his judgment, and Brown would have only l^t ^ cents, 3 mills, on each dollar of his claim. Agreeably, than, to--»le scale of even handed justice, Stamps is only entitled to recover tk> balance after deducting 72 cents, 7 mills from each dollar of the amount of the note now in suit, which said amount Stamps has received to Brown’s use. The court therefore erred in giving the instruction asked for by the plaintiff; and also in not giving the instruction asked for by defendant’s counsel. The judgment below must be reversed, cause remanded, and venire de novo awarded.

Judges Montgomery and Huston concur.  