
    Ferris against Saxton. 
    
    THIS was an action brought by Ferris as endorsee, against Saxton as endorser of two promissory notes 4459 dollars 78 cents, each, made by one George Holcomb, to Saxton, and by him endorsed to one Gordon, and by Gordon to the plaintiff. The notes were both dated 21st February, 1814, and payable, the one at four, and the other at six months, at the State-Bank in New-Brunswick.
    
    Pi-ptóssory and’necessity pCumtórser.
    The plaintiff proved the hand-writing of the maker and endorsers of tlio notes, and road the same to the jury; he also proved, that the notes were presented to the cashier of the bank, on the days on which they became due, and payment demanded, which the said cashier refused; that the notes wrere thereupon protested in the usual form, and that on the days following, letters were put into the post-office at New-Brunswick, addressed to the -'■said Saxton and Gordon respectively, at Flemington, containing notices of such demand, refusal and protest; that the notary who sent the notice, had taken pains to make inquiry respecting Saxton’s residence; that he inquired of one Samuel Holcomb of New-Brunswick, who he understood came *from the part of the country where Saxton lived, and had connexions in trade there; and was informed, that Flemington was the most likely place of his receiving a notice.
    Upon this the plaintiff rested his cause.
    The counsel for the defendant then moved for a nonsuit, for the insufficiency of this notice.
    But the court observed.
    1. This question of due notice on the non-payment of notes, has not been very satisfactorily settled in New-Jersey: the old practice, and indeed the practice up till this day, so far as I know, has been, to consider the endorser merely as security for the maker of the note, and if he would exonerate himself, to put him to shew, that the non-payment had been owing to want of due diligence in the holder, and that if condemned, the loss would fall upon him, for want of reasonable notice of such nonpayment.
    2. Upon this principle, it has been the course of the court to submit the question of due diligence and reasonable notice, as a matter of fact, to the consideration of the jury, and not as a matter of law, to the opinion of the judges. It is well known, that different rules have been adopted, both in England and in our neighbouring States on this subject; but I am not willing to depart from what I consider as a settled practice, on any authority less than a decision at bar. I am therefore disposed to leave this case to the jury, upon the evidence, both as to the question of due diligence and of reasonable notice; and I do this with a direct view, thar. the matter may be stirred at bar, if it shall be found necessary, on the coming in of the Postea, in order that this very important doctrine may be sett! ed in this state, upon proper principles, and become publicly known.
    3. As these notes are drawn on stamp-paper and made payable at bank, it must have been well known to the endorser, that they were intended to be negotiated there; that the bank having a settled and well known custom as to these notices, it may be considered, that the endorser under such circumstances, submits himself to this custom, and that both he and the bank are bound by it. And if so, it will be for the jury to consider, whether this custom has been pursued in this case, and whether the notice has in all things been such as the custom required. Therefore let the motion for nonsuit be overruled.
    *The defendant examined a number of witnesses; who proved, in substance, that Saxton used formerly to live at Flemington, where he kept an office as an attorney at law; that in the spring of 1814, he moved to Major Hint’s in Lebanon, where he still lives, being about 10 miles from Flemington; that there are several post offices nearer to Major Hunt’s than that at Flemington, and some of them within 4 or 5 miles; that Saxton appeared to be much engaged in other business besides that of an attorney at law; that he is a single man, without a family.
    The defendant offered George Holcomb the maker of the note as a witness ; who was objected to, on the ground that he was the maker of the note, and therefore interested. Butthe court, constrained by the decision in Alley’s case, directed the witness to be sworn, and left his credibility, under the peculiar circumstances of the case to be weighed by the jury.
    
      Holcomb,
    
    swore that he had no interest in the cause, let it be determined whichsoever way it might; that he had had negotiations and accounts with Ferris the plaintiff; that he made a settlement with him at Drake’s tavern, in New-Brunswick, in the presence of William R. Smiley and one Haines; that on that settlement there was a balance due to Ferris of 4459 dollars 78 cents, and that he agreed to give him his note for that sum, with Saxton and Gordon as endorsers ; that a note was accordingly drawn by said Smiley, and signed by the witness for that sum, but he thought, as it was read to him, it was not payable at bank; that after the signing of the said note, Ferris alleged that there had been an omission in the settlement, of certain interests due to him, and also an error in certain freight charged by the witness, - and that on account of this omission and error, there was due to him a further sum of 200 dollars or upwards; that on account of a difference between Ferris and himself as to the amount of the freight, they could not then ascertain the precise sum so due to Ferris, he claiming 200 dollars or upwards, and witness supposing there ivas due not. more than 160 or 170 dollars ; that witness then proposed to sign another note, in blank, and get it endorsed by the said Saxton and Gordon, to be filled up when the said balance should be ascertained, and that he did sign the same accordingly ; that he sent as well the said note as the said blank, signed as aforesaid, to his clerk, Achilles Large, to get them endorsed by the said Saxton and Gordon, and that they were * afterwards sent back to him so endorsed ; that as witness could not go at the time to New-York, he gave the said notes to the said Smiley, who undertook to settle the said account with Ferris, to fill up the blank note with the proper balance, and to take Ferris’ receipt and discharge ; that the whole sum which he owed Ferris, was about 4746 dollars; that he had an account of freight against him for the transportation of goods, of 119 dollars, or thereabouts, which, together with the said note of 4459 dollars 78 cents, being deducted, would leave a balance of 167 dollars, or thereabouts; and that with this sum, the blank note ought to have been filled, and with no more. But> the witness offered no regular books, or accounts, to establish these sums or balances, or how they arose.
    
      A. E. Large,
    
    swore that when Holcomb sent the note at six months to him, it was in blank, and was so endorsed by Saxton and Gordon, and that the other is the note at four months, and he thought was not then payable at bank. And it was also proved that the filling up, or rather the whole note, is in the hand-writing of Smiley.
    
    The plaintiff gave in evidence, the deposition of said Smiley, taken by-commission, in substance as follows: That he was present at Drake’s tavern, 21st February 1814, when a settlement took place between Ferris and Holcomb, on which Holcomb fell in debt to Ferris, 8919 dollars 56 cents, with which Llolcomp was perfectly satisfied, &c.; that there was no mistake, unfairness or fraud in the settlement ; that at that time the defendant drew the two promissory notes, which Holcomb then and there signed; that Ferris immediately went to New York, leaving with deponent the two notes with the evidences of the debt due from Holcomb to Ferris, for which the notes were given, and the calculations, &c. with directions to deliver the evidences of said debt, to Holcomb, when ho should procure the endorsements of N. Saxton, of Gordon, and G. Rockejellar; that on the same day the deponent delivered the two notes to Holcomb to get the endorsements; that some time after, Holcomb returned the two notes to deponent endorsed; that a short time afterwards, deponent delivered to Holcomb the evidences of debt and calculations aforesaid. That at the time of settlement, the deponent became acquainted with the consideration for which the two notes were given; that Ferris, at that time held and produced a * note drawn by Holcomb, for about 2600 dollars; two or more drafts drawn by a certain William Haines, on Holcomb, and by him accepted, for upwards of 3000 dollars; also a book account for a large sum of money: which Holcomb acknowledged to be just, and which amounted to 8919 dollars 56 cents. That the deponent had not in his possession any of the papers by which the said settlement was made—all were delivered to Holcomb; that the two notes were written by him before they were signed or endorsed, and that there was no blank in date, amount, or any other respect, left in said notes previous to their being signed and endorsed. That deponent understood at the time of settlement, that part of the sum due from Holcomb to Ferris, arose from certain drafts drawn by William Haines, on Holcomb, and by him accepted; that Haines had failed, and Ferris, as the holder, claimed the amount from Holcomb, as accepter ; that Holcomb admitted the claim, and it constituted part of the amount.
    
      George Holcomb
    
    being again called, said that Ferris did not at the time of this transaction, hold any notes or drafts of said Haines, accepted by him; that when he found the blank had been filled up with a larger sum than agreed upon, he reproached Smiley with his want of fidelity, and that Smiley said it would make no difference, was to oblige Haines, who wras a clever fellow, and who would raise the money to meet it before it was due.
    Sundry witnesses were called to impeach the credit of Smiley, and they represented him as a man unworthy of credit. It was proved that Holcomb had been considered as a man of large property; that upon the arrival of the Bramble in January 1814, his circumstances began to change and to decline; that he became greatly embarrassed, and that, at the time of the trial, he was thought to be insolvent.
    The cause was submitted to the jury without summing, and without charge from the court, except merely to say, “ that a note under the circumstances detailed by Holcomb, is not like one assigned for valuable consideration, without notice of such circumstances. In the -hands of such an assignee, it is no matter whether the note was signed in blank or not, or whether it had been filled up according to agreement or not. But here, according to Holcomb, the assignee is a party to the original contract; the note is, in fact, given to him for a balance due, and the endors*ers are but sureties for the payment. This is the substance; the form does not alter the law. The fraud in filling up, was a question for the jury.” The jury found a verdict for the plaintiff for 10403 dollars 66 cents, being the amount of both notes.
    On the coming in of the Postea, a rule was taken to shew cause, why this verdict should not be set aside, and a new trial granted. This rule was argued at November Term last.
    
      Ewing, for the defendant.
    1. The Judge, at the circuit ought to have ordered a nonsuit, because the plaintiff had not made proof of those matters, requisite to maintain his action.
    The proof required from the plaintiff, must in all cases, depend on the nature of contract on which he sues.
    The contract entered into by the endorser of a promissory note, does not bind him at all events to discharge the note; it is a conditional engagement only. His liability arises on the performance by the endorsee, of the condition contained in the contract. lie engages, that in case the note be not paid by the maker, he will pay, provided due diligence be used by the holder. The endorsement raises a promise in law, to pay the note, not absolutely, but, provided the holder, in due season, demand payment from the maker, and give notice of nonpayment—Kyd, 75, 76. 9 John. 121.
    The contract on the part of the holder, is also conditional. He engages to use due diligence; and without performance on his part, no right of action accrues.
    This view of the subject evinces at once, and with certainty, the proof to be produced by the plaintiff. He must prove the endorsement and the performance of the condition on which the liability of the endorser depends, lie must shew due and legal diligence. This consists in a demand of payment made on the drawer by the endorsee, on the day the note becomes payable, and a notice of non-payment from the endorsee to the endorser, to be given without delay. Kyd, 79. 12 John. 424. 4 Dali. 129. 10 Mass. 84. 2. Caines, 34 J. The usual form of declaration containing an averment of demand and notice, points out the proof expected from the plaintiff.
    To require the defendant, by way of defence, to prove want of diligence and loss or damage thence resulting to him, is inconsistent with the nature of the contract between the parties, is to invert the established order of proof, by compelling him to prove a negative in a case where the law by no means presumes the affirmative, and would leave nothing more for the plaintiff to shew, than the mere fact of endorsement, which is far short of the duty most evidently imposed on him.
    Applying these doctrines, the defect of the case made out by the plaintiff is manifest. He proved a legal demand. He proved a notice put in duo season into the post-office, addressed to Flemington; but he did not prove that this notice ever came to the hands of the defendant, or that Flemington was his place of residence.
    It is not contended that a personal service of notice must always be shewn; a notice may be sent by post, but this can only be where the endorser lives at a post town ; and the sending by post is but presumptive eviof notice, liable to be counteracted by proof that it was never received. Where the party has a fixed place of residence, it must be sent there ; and want of proof of actual service can only be supplied by proof that it was sent to his place of residence, or that he had no fixed place of residence, and could not be found. 13 John. 432.
    Proof of notice by mail, addressed to Flemington, unaccompanied by proof of the defendant’s residence there, was utterly defective: it might as well have been addressed to Trenton or to Salem.
    
    To the argument founded on the supposed customs of the bank where this note was lodged for collection, we answer: This note is not drawn on stamp-paper; neither the drawer or endorser of the note therefore, could have intended or anticipated a negotiation of it at bank, and cannot therefore be bound by such customs. But it is insisted that the bank could have no valid or obligatory rules or customs inconsistent with, or contrary to the law of the land. 2 Caines, 343. And if it could, no proof was given on the trial of this cause, that any such custom or rule existed. The notary stated what was Ms custom, not what was the custom of the bank.
    2. This verdict ought to be set aside, because it Avas submitted to the jury to decide, whether the facts piwed by the plaintiff constituted legal diligence; a question which should have been decided by the court on the motion for a nonsuit.
    *What shall constitute due diligence is a question of law. It is an inference of law to be drawn from the facts in any given case. The court therefore, not the jury, should draAV such inference. Where the evidence of facts is disputed, it is proper for the jury to pass upon them, but with express instructions from the court as to the legal result of those facts which ever way they are found ; but where the facts are not controverted, as in case of motion for a nonsuit, it is the province of the court to say, AAdiat are the legal result and operation of those facts, and whether they entitle the plaintiff to recover. The effect of facts proved or admitted, is always a question for the court. Whether notice was given ? how ? when ? are questions for the jury. But whether the notice thus given is in proper form and due season, are questions of law, not of fact. Kyd, 80, 81. 4 Dali. 165. The doctrine now contended for, has been recognized by the court. Penn. N. J. Reports, 916.
    3. If the question of diligence is proper to he submitted to the jury; then the jury have in this case erred, and their verdict should be set aside.
    The proof of diligence given by the plaintiff, was radically defective and entirely inadequate ; but all reasonable pretence of diligence was dispelled by the defendant’s testimony. He shewed incontrovertibly, that he had a fixed, notorious place of residence, at Lebanon, not at Flemington; and that there were several post-offices much nearer than Flemington to his place of abode ; we deny that sending by mail is any evidence of notice, unless the party actually reside in the very town to which the letter is addressed. 10 John. 493. But if any latitude in this regard is allowed, surely the nearest post town is indispensable.
    4. If the jury are the legal arbiters of the question of diligence, the case should have been put to them expressly on that poitit; their attention should have been peculiarly claimed upon it; they should have been directly charged to inquire and consider, and be governed thereby. There is much reason to believe the sufficiency of the notice and the exercise of diligence, never entered into their deliberations.
    5. The verdict is against evidence, and erroneous. Great respect and weight are due to the decision of a jury on matter of fact; but reproachful would be our jurisprudence, and deplorable our condition if in this regard they were beyond controul.
    *1. One of these notes was drawn and endorsed in blank; when issued it was expressly stipulated that it was not to be filled up at pleasure, but with a certain sum of small amount, not exceeding 200 dollars. All this was known to Ferris, the endorsee; he was in fact, present at, and a party to the agreement. The note was however filled up with 4459 dollars 78 cents. Ferris, therefore, if entitled to recover any thing, should have had a verdict only for the amount originally stipulated. facts, it is true, mainly depend on the testimony of Holcomb, but he was a competent witness, Penn. Rep. 791; and his character was unassailed. He was in his representations contradicted by Smiley, by nothing else, by no other witness. Smiley, by a number of highly respectable witnesses, was proved infamous, and not credible, and was himself the instrument of this imposition. By what legal principle then, could the jury have been governed ? .
    Mr. Stockton, in answer.
    This being an application for a new trial, because a nonsuit was not granted at the Circuit; it is incumbent on the adversary to shew that there was no evidence; for if any evidence, the jury ought to pass upon it.
    The contract of the endorser, as stated by the counsel for the defendant, is admitted to’be true. The endorsee must give evidence of a demand, or of. reasonable diligence to make it: he must also give notice to the endorser, or use due diligence to do so.
    But the demand need not always be personal: it may be at the bank, if the note be payable there. Here the necessary and proper demand was made.
    If an endorser live in the same town, a personal notice ought to be given: and where the note is particularly located, notice at that place is sufficient.
    The question of notice, is always prima facie, a question of fact. The dispute, whether it was for the court or jury to decide, has had reference to the time of giving the notice, and neither to its contents nor the truth of its being given at all. If there be any evidence before the jury, from which a notice might fairly be inferred, then all difficulty ceases. It not only becomes a question wholly for the jury ; but, the evidence itself is sufficient.
    The notice need not be personal; nor need it be left at the residence of the defendant. It has long been established in EngHand, and in every state in the union, where there are banks; that evidence of putting it into the mail, directed to the endorser, is sufficient. This doctrine is to be found in Marius, but was first particularly established in 2 Hen. Bl. 509, which is the leading caso, and the foundation of the practice of the banks. The jection therefore to the want of notice, entirely failed upon the motion for nonsuit. The notice was sent by the mail; and there was such evidence, that the jury might fairly infer that Saxton received it. There was nothing in the idea that the letter should have been sent to Hunt’s ; and not to Flemington. The only permanent domicil proved, was at the latter place. No evidence was given, of any post-office nearer to Bull’s island, and he appears to be merely a lodger at Hunt’s. Besides, Gordon who was the second endorser, and to whom Saxton was responsible, lived at Flemington; and it is fair inference, that he would have sent the letter, or in some way communicated the notice to Saxton. The argument then is : that notice is a mere question of fact; that personal notice is not necessary; that notice sent by the post is sufficient; that Flemington might well be considered the residence; that Gordon, the second endorser, lived there, and had an interest in communicating the notice; and that the jury, from all these circumstances had a right to find the notice.
    The Judge could not therefore nonsuit. He correctly stated, that reasonable notice was a question of fact, and referred it to the jury. It must always be a question of fact; it is absurd to say that it is a question of law. It changes with circumstances, and has often varied in England. In that country, there has of late years been a struggle to place it altogether in the power of the judges to decide it; but until the case of Tindal and Brown, 1. D. and E. 167, it was always referred to the jury; and that case has since been contested in England. See 6 East, 14. The ancient inquiry there, was; had the party received any injury? In our State it would be pregnant -with the utmost evil, to require such strictness; and the current of decision in the United, States has been in favour of the doctrine in East. See 1 Cr. 271-2. 2 lien. Bl. 569.
    Though it is not intended to insist, that notice is not necessarj7 in case of accommodation paper, yet it is proper to urge that *it is a mere formality ; and that in the present instance, the defendant could have derived no from it.
    But ft ft not admitted that the notary or holder was bound to go out of New-BrunswicJc, to look for the endorsers. The note was dated at that place, and is thereby located; and the notice need not be sent elsewhere. 1 John 294. 10 John. 493. 13 John. 432.
    These positions prove that the nonsuit ought not to have been granted, and that the verdict was not against the evidence on this point. Whether the notes were stamped, and the judge was in an error on that point; is a matter of no importance. They were payable at the bank, and this was sufficient to bring them within the strict custom of the bank. It is not however, intended to rely on this custom ; but upon the law of the land.
    2. It was no error in the judge, not to put the cause to the jury, upon the question of notice. In overruling the motion for a nonsuit, he placed it properly before them as to this point, and left it to their decision. Besides, he was not required to charge respecting it, and he was not bound to do it voluntarily.
    3. The verdict was not too high. This depends upon the filling up of the note; whether it was signed in blank) and afterwards filled with upwards of 4000 dollars, when it should have filled with 200 or 300 dollars. There is no evidence of this, but the testimony of Holcomb; and that testimony is subject to insuperable objections. He -was the drawer of the note, and therefore an incompetent witness. Phil. Ev. 46-47. He was also directly interested. If Saxton failed in his defence, and had a recovery against him, he could recover from Holcomb. The record in this suit would be competent evidence in his favour. The privity between surety and principal pervades all the proceedings, and it is not therefore res inter alios acta. Besides, if Holcomb were competent, he might have been disbelieved by the jury. His credit was assailed before them, as being a witness in his own cause, as being contradicted by Smiley, as being a regular merchant, yet showing no vouchers in such important transactions, and as telling a story altogether extraordinary and incredible; and which if true instead of being concealed for months, at the very place where some of the parties lived, and notes were negotiated; would have produced immediate complaint, and disturbance. Under such circumstances the jury might well disbelieve Holcomb, and find a verdict for the full amount claimed.
    Mr. Wall in reply, confined himself to the points contested, and maintained; that a notice must not be sent to the place where it would be most likely to find the defendant, but to the place of his residence. Residence, is the real and only consideration, and therefore no evidence was given, from which the jury had a right to infer notice.
    When the facts are ascertained, the court determines the law, and does not, nor ever did, leave the reasonableness of the notice to the jury. Where no notice is given, the jury never decide; and here there was no notice.
    All the cases require the notice to be directed to the residence of the defendant; a mere putting it into the post-office is nothing. The case referred to in 1 John, is an exception, and is one of extraordinary diligence, and where the residence could not be found. Gordon was in no respect bound to give notice to Saxton, nor could the jury legally presume that he did it. There being therefore no ground for the jury to infer a notice, it was the duty of the court to nonsuit.
    The question is not whether the party was injured by want of notice. No English case can be found to support such a notion, and if there is any case in this State, it must have been decided in those early agricultural times, when the endorser was considered as a security, and not since the law merchant has been applied.
    In all the cases which are cited, to prove that the question of notice rests with the jury, a notice had in fact been given; and the dispute was whether it was given in time. In the present case no notice is given, and no difficulty is started as to time, 1 Granch, 271-2.
    There is no difference between business and accommodation notes; or if any, the notice in the latter should be most strict. 4 Granch, 141.
    
      The principle is incorrect, that New-Brunswich is to be as Saxton’s residence, because the note is dated there. 5 Bin. 541. But if true, it would not avail the plaintiff, because no notice was given, or attempted to be given there.
    It is confidently added, that if this be a question for the jury, *yet under all the circumstances of this case, the jury have unquestionably erred, and a remedy ought to be afforded.
    The testimony of Smiley and Holcomb, who know the whole transaction, presents so suspicious a case, as, of itself to require a reinvestigation.
    Nor is the objection, that the verdict is against the weight of evidence removed as to the amount, and Large says that the notes were not payable at bank.
    
      
      
         Cited in Johnson vs. Martinus, 4 Hal. 146 (disapproved in Chaddock vs. Vanness, 6 Vr. 517), Bank vs. Butler, 7 Hal. 270, Barkalow vs. Johnson, 1 Har. 400, Freeman ads. Brittin, 2 Har. 237. Partly overruled in Hazelton Coal Co. vs. Ryerson, Spen. 129. See, also, State Bank vs. Ayers, 2 Hal. 130, Sussex Bank vs. Baldwin, 2 Har. 487, Burgess vs. Vreeland, 4 Zab. 71, Disborough vs. Vanness, 3 Hal. 231, Ribble vs. Jefferson, 5 Hal. 139, Martinis vs. Johnson, 1 Zab. 239, Washington Bank vs. King, 2 Green 45, Woodruff vs. Daggett, Spen. 526, Howland vs. Adrain, 1 Vr. 41, Haines vs. Dubois, 1 Vr. 259, Halsey vs. Salmon, Pen. *916, Oliver vs. Munday, Pen. *982.
      
    
   Chief Justice.

This is an action on the case by the endorsee against the endorser, of two promissory notes, in which there was a verdict for the plaintiff for 10403 dollars 66 cents, and now it is moved' to set aside this verdict, and to grant a new trial.

There were several questions raised by the council for the defendant on the trial, but they have now thought proper to waive some of these, and to place the motion for a new trial upon two reasons only, viz.

1. That the plaintiff failed in making out his action, because he did not prove notice to the endorser of the non-payment of the notes by Holcomb, the maker ; and-therefore ought to have been nonsuited at the trial.

2. That the verdict is contrary to the evidence.

The last of these reasons is founded principally upon the testimony of Holcomb, the maker of the notes. Now, with respect to this witness, it is to be observed, that he stood in such circumstances as to this controversy, as would not fail to interest his feelings in the highest degree. He had got this young man, who was his friend, to endorse for him to a great amount; he saw him now on the very verge of ruin; he, himself had failed, he could not save him ; his friendship, his pride, his honour, falsely so called,' were all engaged to alleviate this impending calamity. Holcomb too, had been a merchant, a man of large business, for many years; he must have been accustomed to keep books, to make entries, to set down charges, to give credits, especially in large transactions; and yet he comes into court to give testimony, in a matter like this, so important in its amount, so delicate in its nature, merely from memory; he produces no book, no entry, no memorandum, no receipt, no charge, no credit, nothing of that kind entitled to the least consideration. Ender such circumstances, a struck jury of the most independent and respectable men *in the county of Middlesex, most of them well acquainted with Holcomb, have thought proper wholly to discredit his testimony ; and in doing so, can we say they have done wrong ?

Moreover, upon Holcomb being offered as a witness, and objected to, because he was the maker of the note, the case of Rosevelt and Gardner, decided in this court in May Term 1811, and reported in Penn. Rep. 791, was cited, though the book was not produced, and relied upon as a case in point. From the manner in which that case was stated, by the council for the defendant, and from the imperfect recollection of it entertained by the court, it was'thought to have decided the question in principle, and upon the authority of that case alone, the witness was admitted. But in looking into it, as it is reported in the book (which in the report of this trial, is called Ally’s case, because one Ally was the witness there offered) it is not perceived that it touches this question at all. There Gardner had made a note in the usual form to Ally, and Ally had assigned it to Rosevelt, and in an action by Rosevelt, the endorser, against Gardner, the maker; Ally was held to be an admissible witness. But then it seems to have been so holden, not because it is a general principle that the endorser, in such case, shall always bo received as a witness, but upon the special circumstances of that case only. Ally, was offered to prove that there was nothing due on the note when he endorsed it to Rosevelt, or at least, but conditionally due; and that he informed Rosevelt, of that circumstance at the time of the endorsement; and he was admitted as a witness to prove that fact. The reasoning of Judge Pennington in that case is not clearly understood; but he expressly says, that though he would not be understood to approve the opinion of Lord Mansfield in the case of Walton and Shelly (a pretty famous case upon this subject, decided in 1786, in England) yet he would not overrule it, but leave it undisturbed. That opinion of Lord Mansfield then, which was in accordance with the whole course of judicial proceeding before that time, being left undisturbed; there is nothing in this case of Rosevelt and Gardner, that goes to establish it as a general principle; that in an action by the endorsee against the maker, the endorser is an admissible witness; and if so, certainty nothing can be drawn from it to fortify the position, that in an action by the endorsee against the endorser, the maker can be admitted as such. *Then, laying this case of Rosevelt and Gardner out of the question, how does the matter stand ?

The notes in question were mere accommodation notes. They passed immediately from Holcomb to Ferris, in payment of a debt, and Saxton became endorser as a surety only. He gave no consideration for the notes to Holcomb, he received none for them from Ferris. Suppose then, Ferris to recover in this action, and to make the money of Saxton’s property; surety, Saxton will have his action against Holcomb for the amount so recovered and made; and suppose again, Ferris to fail in this action, and Sax-ton to have a verdict in his favour, is it not equally sure that Saxton, having given no consideration for the notes, and being wholly exonerated from his liability on the endorsement, can never maintain an action against Holcomb on that account ? If this be a proper view of the case, then Holcomb was directly interested in the event of the suit to the whole amount of the notes. For he, who by his testimony, exonerates himself from a direct and immediate liability, is as much excluded as any other, on the score of interest.

Instead, therefore, of Holcomb’s testimony being made the ground of a new trial, it ought to be laid wholly out of the case, because he was admitted as a witness, contrary to the general principles of law, and upon mistaken authority.

Some reliance too has been made in support of this reason, on the evidence respecting the alteration of one of these notes after it had been endorsed, by making payable at the bank, when at the time of the endorsement, it contained no place of payment. But inasmuch as there is evidence on both sides of this question, and inasmuch as Smiley, in whose hand-writing the note is, and who appears to have been wholly disinterested, has sworn positively against such alteration, which he could not have done without direct, positive and wilful perjury; and inasmuch as this was opposed only by the casual observation and fleeting memory of Mr. Large; however doubtful the character of the one, and however fair that of the other; it is not peiceived that tins ought tobe made the ground of setting aside a verdict of a jury solemnly rendered, upon the fullest view and most deliberate consideration of the character and standing of both witnesses.

Though the power of setting aside verdicts, because they are contrary to the weight of the evidence, is clearly established in *the law, yet that power is always to be exercised with the greatest caution. And where the objection to the verdict rests solely upon the jury’s having credited one witness, and discredited another, it is not remembered that such power has been exercised at all-The credibility of witnesses is the peculium of the jury. Take that away and what is there left.

Before we proceed to the other reason, leave is prayed to observe, that it must be within the knowledge of every member of this bar, of the standing of twenty years and upwards, that the course of this court as to notice of non-payment in cases of this kind, was not formerly, according to the strict rules which are now adopted both in England and in our neighbouring States-This doctrine of notice was then put upon much broader principles, perhaps much too broad for public utility and private security, in these mercantile transactions. The idea then entertained, was, that the endorsee of a promissory note, must, at his peril, use duo diligence to obtain payment from the maker, but it was not held that it was necessary, in order to maintain an action against the endorser, to give him notice in case of non-payment.

It was thought that the endorser was prima facie, liable, and that he could only exonerate himself by shewjI1g) that if the money should be recovered against him, he Would lose it, for want of due diligence in the endorser to get it from the maker, or for want of such notice of the non-payment as would have enabled him to recover it himself.

This idea was no doubt founded upon some of the old cases, which speak to that effect, with respect to the liability of the drawer of an inland bill of exchange, upon non-payment of the drawee; and of his being put to shew, upon the trial, that if recovery were had against him, he would lose for w7ant of notice from the holder. Salk 127, 133. Lord Raym. 743, 992. 6 Mod. 80, 81. Bacon. Merchant L. and many other cases there referred to.

But from the great increase of negotiable paper in later times, and especially since the 3 and 4 Anne, as well for the encouragement of trade and merchandise, as for the security of traders and merchants, this doctrine has been reduced to more certain and fixed principles. And it was chiefly with a view, as is manifest from the case here stated,, of bringing up this sübject for the Consideration of this court, that the plaintiff in this cause, was permitted to proceed in the trial, and to take this verdict.

Now, as to the first reason, viz. that the plaintiff did not prove notice to the endorser of the non payment, by the maker of these notes, and that therefore, he ought to have been nonsuited at the trial.

From the admissions which have been made by the counsel in the argument, all that need be said upon this subject, may be compressed within very narrow limits.

It is admitted, that according to the principles of the law, as settled at this day, the endorsee of a promissory note, in order to maintain an action against the endorser, must shew that he demanded the money of the maker, if to be found; on the day on which it became due; that is, on the third day of grace; or if that should fall on Sunday, then on the Saturday preceding, being the second day of grace; for in those mercantile transactions, there are always given three days for payment, after the day mentioned in the note; which-three days are called days of grace. In this case, such demand is admitted to have been made; and it is also admitted, as well as proved by the plaintiff; that the maker of the notes refused to pay.

It is admitted also, that in order to maintain such action against the endorser, the endorsee must give him notice of such demand and refusal, and that within a reasonable time.

What the reasonable time is, must always depend upon circumstances; such as place of residence, accessibility, means of conveyance, &c. But the reasonableness of notice, in point of time, does not at all come in question here; for the only notice pretended to have been given, being the putting of a letter in the post-office at New-Brunswick, and that in time for the next post after the demand and refusal of payment; it must be admitted, that if notice at all, it is reasonable in point of time.

The only real question then, here presents itself, to wit; whether the putting of the notice in the post-office at New-Brunswick, directed to the defendant at Flemington, was alone, such evidence of notice, as ought to have been left to the jury.

It is argued by the counsel for the plaintiff, in the affirmative, for that it might by possibility have reached the defendant, and whether it really did so or not, was a fact to be decided by the jury, under the circumstances of the case, and not by the court; *and that therefore the plaintiff could not have been nonsuited upon the trial. And from the course the argument has taken, we are, though it is thought unnecessarily, pressed into the question, whether reasonable notice or not, bo a question of law, to be decided by the court; or a question of fact, to be decided by the jury.

And though this question has been well settled, yet perhaps it may not be improper to observe; that our statute respecting promissory notes and Inland bills of exchange, goes farther than either the statute of 9 & 10 W 3. or 3 & 4 Anne. For as to these inland bills, it makes a protest necessary in all cases of non-acceptance and non-payment, and places them in all respects precisely the same footing as foreign bills; and it then goes on and m'akes promissory notes assignable and recoverable in the same manner as inland bills of exchange. It is manifest then, that these promissory notes when assigned, as well as inland bills of exchange, are made wholly subject to the law merchant, or what is generally called the custom of merchants, and must be governed by it. Now, the law merchant is part of the common law of England, and as such is adopted by our constitution, as our law also ; nay indeed, it is the law of the whole mercantile world. It is to be taken notice of by the judges as such, and to be understood and declared by them in the same way as all other parts of the law are to be interpreted and declared. When it becomes a question, what the law merchant is in any particular case in forensic discussion, that question must be answered by the judges, and not by the jury, according to the old maxim, ad questionem legis respondent Judices; for this law merchant, cannot, no more than any other part of the common law, be proved before a jury by witnesses as a matter of fact, and so be subjected to them to determine what it is.

If the reasonableness of notice were to be left to juries, without any other rule than their own conceptions of reasonableness, their verdicts would be as various as their names. What one jury would think reasonable, another might think not so ; and all the transactions of mankind in this negotiable paper, would become a scene of uncertainty and confusion. No man would know when he was bound, and when he was not so, or when he must look after his effects in the hands of his correspondent, and when not. In short, it would derange the whole mercantile system. The *custom of merchants therefore, upon this subject, has established rules and regulations of its own, which govern the mercantile world; and which ought in good faith to be carried fairly into execution in every mercantile country. These rules and regulations are part of the law merchant, and as such, ought always to be declared by the court, and never to be submitted to the decision of the jury.

Taking the question of reasonable notice, in the aggregate, it is a mixed question. What is reasonable is a question of law for the judges; whether that notice has been given, is a question of fact for the jury; and as in all other cases where the law and the fact are blended together, the jury must nass upon it.

But then, the law as declared by the court is part of their evidence, and they are bound to observe it.

But in this case, there seems to be no room for the investigation ; for the question is not, whether there was notice in reasonable time, but whether there was any evidence of notice at all, that ought to have been left to the jury.

The notice required by the law, is an actual and real notice, such an one as will apprise a man of his situation, of his liability, of his danger ; such an one as w7ill enable him to look after his effects, and secure his property. Every thing short of this, is a mere mockery. But inasmuch as in certain situations it would be very difficult and very expensive, if not impossible, even in cases of inland bills and promissory notes, to give direct personal notice to the party himself, or to his agent or family at his place of abode, it has been adjudged that the putting of such notice into the post-office directed to the endorser if he live in a post town, is sufficient evidence of the service ; and this is the farthest that courts have gone to supply the direct proof of such personal notice-

Indeed, it would seem as if this were going a great way, unless such endorser lived within the circuit of the penny-post; for it is not the custom of men, in an agricultural state like this, to resort to the post-office every day to look for notices; nor is it known that they are under any obligation to do so. But this is by the by only. That question will be considered if necessary, in its proper place.

But without this, the present case does not come within the *rule as to putting notices into the post-office. It is far short of it. Saxton lived many miles distant.

Notwithstanding therefore, what was said at the trial, as to the former course of the court, as to the province of jury, and as to the custom of the bank; let the verdiet set aside, and a new trial granted.

Rossell J.

This case depends principally upon two points. 1. Was the notice to Saxton, such as the law merchant requires in cases of this nature. 2. Is the question of notice, one on which the court is to decide, or is it to be determined by the jury.

It has been a long established principle, that the endorser and payee of a promissory note, or bill of exchange, each acquire certain rights on the execution, acceptance and non-payment of such instruments; and it is only by a strict conformity to those settled rules, that individuals can avail themselves of the benefits they may mutually claim, as parties to the notes or bills. In the present case, it will be sufficient to inquire, what were the rights Saxton was entitled to, as an endorser to two promissory notes. On the non-payment of the note, when due, by the drawer, and the protest made; the holder was bound to use due diligence, in giving notice to the endorser, for obvious and often repeated reasons. In England, the rules respecting notice, are strict in themselves, and as pertinaciously adhered to. In this country, from the difference of situation, in many particulars which need no elucidation, the rule of notice has differed in different states, and in the same state, at different periods of time. Since, however, banks have been multiplied, and post-offices established, in all the states, much more uniformity has prevailed, and no substantial reason can now be assigned why the rule of notice, in this country, cannot be reduced to as much certainty, as in any other.

From the investigation of authorities, and inquiry of individuals concerned in banking institutions, the rule in this state, I take to be this. When the endorser and holder of a note, live in the same town; personal notice, or one left at the dwelling of the endorser, is required. If the endorser lives at a distance, a written notice must be sent by the first post, to the nearest post-office, directed to his place of residence. This is a reasonable rule, as favourable to the holder of the note or bill, as the rights *of the endorser, and the necessity of notice would admit of. And Chief Justice Marshall in 4 Granch, 163, says : “In point of reason, justice, and the nature of the undertaking, there is no case in which the endorser is better entitled to demand strict notice, than in the case of an endorsement for accommodation, the maker having received the value.”

2. Is the question of notice, for the decision of the court or jury. In this country, in the several states, it has been decided differently; sometimes as a mixed question of law and fact; sometimes left to the jury; and at others, settled by the court. In England, formerly, it was considered a question of fact, for the determination of the jury, on the particular circumstances of the case. But it was found, that this was productive of endless uncertainty and inconvenience, and the court laid it down as a principle; that the time, both for the demand and notice, was a question of law for the court. Juries struggled hard, to maintain their supposed rights, and it was not until new trials had been frequently granted, (in some cases as many as three) that the point was fully established, that what shall be a reasonable notice, is a question of law; and generally that a demand must be made, and notice given, as soon as under all the circumstances, it is possible to do so. In 4 Dali. 129, the Supreme court of Pennsylvania, as early as the year 1793, said, as soon as we can, consistently with the state of the country, its roads and its posts, it will be wise to adopt the English law on the subject, for the sake of certainty and uniformity in the administration of justice. In Buller’s N. P. 273. “ The endorsee must give a reasonable notice to the endorser, upon default of payment by the drawer: but proof of making inquiry after defendant, who could not be found, will be sufficient to excuse the giving such notice, unless the defendant can prove that he was to be found. Here it is evident the endorser might have been found.

Without giving any opinion as to several other points raised, on the whole of this case, I am of opinion, that the defendant is entitled to a new trial, when the parties may come better prepared, and the several matters receive a more deliberate examination.

Southard J.

This cause, upon the state of the case, assumes an extraordinary complexion. The defendant, proved by testimo*ny apparently credible, that one of the notes was endorsed while the sums and dates were blank, and was filled up fraudulently with a much larger sum than was agreed upon ; that when signed it was not drawn payable at bank, and not being stamped as was required by law, could not be negotiated there. On the other side, these facts, with the exception of the stamp, were positively contradicted, by a witness apparently disinterested ; so that perjury must have been committed, or there must have been a most singular misunderstanding by two witnesses on the one part; or by one on the other. The credit of the one witness was seriously impeached, yet the verdict was founded on his oath. The consideration of the note was contested; yet no documents or vouchers of any description were presented, in transactions, said to amount to several thousand dollars. These are circumstances well calculated to create a wish, that this cause might be further investigated.

It is also a singular fact, that these notes, which are not stamped, should have passed throughout the trial, as stamped notes. This may have arisen from another note which was in question between the parties, being actually stamped, and the two being blended together, in the haste of a trial. The fact itself, is of distinct importance; because the court founded upon it, one of the points taken, in overruling the motion for nonsuit, and I consider what the court said upon that point, as subject to many serious objections.

1. There was an error in fact. The notes were not stamped. They were not, they could not be, nor could they have been intended to be, negotiated at the bank. They had not the legal requisites for that purpose. They could only have been placed there for collection.

2. The bank neither was, nor could be, a party in interest, in them. Any custom, however legal and operative, could not be mutually binding upon it and the endorsers, as to the notes negotiated there. There were no facts on which any custom of the bank could arise and operate.

3. If there be a custom of the hank, different from the general principles of the law, respecting negotiable notes; that custom ought to have been proved, and a knowledge of it. brought home to the defendant. No proof of such custom or of such knowledge was given to the jury. The evidence of the mode in which the *notary transacted his protests and notices, was no evidence of a custom. He is an officer not of the hank, but of the public. He acts, not by any private or special directions of the bank, or any off i or body; but according to the requirements and regulations established by the law of the land, for all the citizens.

4. But no such custom of the bank, on this subject, can exist. Why should it ? Nothing in its character, or the nature of the instrument negotiated, would justify it. The qualities of negotiable notes are perfectly well settled. They are the same every where, and are unchanged by the hands into which they pass; and so far as any distinction on this point was set up, in favour of the bank, it seems to me, to be incorrect and illegal.

This point in the opinion of the court, presses itself the more strongly on my mind, because it must be regarded as flic only charge given to the jury, on the subject of flic notice to the endorser. After the cause was rested, nothing was said by the court on this part of the case; but the question of due diligence, was left on the remarks made in overruling the motion for nonsuit. Whether if was correct, to leave that question to the jury, in any shape, I do not now inquire; hut if it were so, then the light in which it was presented to them ought to be free from all exception. In leaving it to them in this caso, the notes were considered as stamped; as negotiable and negotiated at the bank; and the right was left upon the custom of the bank, as to these matters. In these respects, there was a misapprehension, and the jury may have been, and in all probability were misled by it. A verdict under such circumstances, ought not to stand. The cause ought to be sent back, to be reheard by another jury.

But other questions have been fairly raised by this rule, upon which the opinion of the court ought to be pronounced. The legal liabilities of parties to promissory notes, offer questions of present and increasing importance ; and ought to be settled, so far as the facts in the case will authorise. They are a species of paper not much known and used, in our State, under the strict principles applicable to them, until long after they had become the subject of statute and adjudication in England. The nature of our situation and society, and the habits of business and of intercourse among our citizens, did not early call for the inflexible application of commercial rules, even to commercial paper; and the courts yielded, in some measure, to the prevailing habits of *the people. Hence it was not until a few years back that we find any settled decisions, conforming to the rigid rules of the law merchant. Such has lately, however become our situation: lying between two of the most commercial cities in the union; the number of our banks excessive, in proportion to the wealth and population of the State ; notes of this description daily increasing to an enormous extent, and until they have become the most common evidences of debt; that it is necessary with legal strictness, to judge of them according to their nature ; and to apply the rules which we find established respecting them. Nor can such application produce any hardship. If the parties are not mercantile men, it is easy, and they ought to use other evidences of debt. If they are mercantile men, and the transactions are commercial; they will not only be willing, but they ought to submit to the rules of mercantile law, where the utmost punctuality is demanded. The ever changing state of debts, credits, and effects, in the hands of such men, requires the most prompt information, to him whose interest is concerned, or whose credit is pledged; and the most rigid application of the remedies, which the law has provided in his favour.

The facts in this case, bring into consideration the respective obligations of the holder and endorser; and it becomes important to inquire, what is the engagement which the endorser makes, to pay the money ? and the holder must do, to fasten the payment upon him ? 1 do not understand the engagement to be what it was stated at the circuit, to have heretofore been considered, that of a security; “ who must shew that the non-payment had been owing to want of due diligence in the holder, and that if condemned, the loss would fall upon him, for want of reasonable notice of such non-payment.” The character of his engagement, is very marked; and altogether different from this, both in the matter itself, and the party on whom the proof lies.

The endorser binds himself to pay on two conditions. 1. That the maker, when a demand is made upon him, or due diligence used to make the demand, shall neglect to refuse to pay. 2. That the holder of the note, shall use due diligence to give him notice of this default, and of his consequent liability. On the failure of either of these terms, he is not bound to pay. If the plaintiff do not prove both, he ought not to be permitted to recover.

Upon the first of these conditions, it will here be sufficient to *remark ; that the demand must be according to the terms of the note, either personal, at his house, or at the place appointed for payment: (2 H. B. 509) but that nothing will excuse it; or due diligence to make it. Even where the note was endorsed several years after its date and day of payment, still it was correctly adjudged to be necessary. 9 John. 121. The reason is plain. This demand is part of the contract entered into by the endorser, and must be performed before his liability commences. In this case, the demand was made at the proper time, and in the proper place.

Upon the second condition of the endorser’s undertaking, I remark : that it is an essential part of his contract, and designed for his benefit, as it is presumed, that many means of obtaining payment, through the assistance of friends and otherwise, mny remain to him ; and the law attaches so great importance to it, that neither death, bankruptcy, insolvency, or imprisonment of the maker, will excuse the omission of it. Being designed too, for information of the default, it must not be given before that default actually exists; otherwise it will be considas no notice. 12 Jolm. 424. 2 Gaines, 343. Bl. Rep. 747 1 y. 167.

The point on which most difficulty has arisen, and which has most strongly divided courts and counsel, is the time, within which the notice must be given, after the default, in order that the endorsee may not be considered as failing in due diligence. But though I think the question susceptible of a clear determination, and though it was much discussed at the bar, I do not think the facts of the case, either require or permit its investigation ; and shall therefore express no opinion upon it, further than to say, that the notice was put up by the notary,- into the office, at the time required by law.

If the relative situation of the parties is such, that the notice which the law has rendered so absolutely necessary, cannot be served personally on the endorser; in that case, the law points out, what is equivalent to a personal 'service of the notice. It requires, that it be sent by the mail, to the post-office nearest the residence of the endorser. 2 H. B. 509. It presumes, from the certainty of the letter carriage in the mail, that a notice so sent, will be safely carried and received; as the endorser in the regular course of his business and correspondence, will call for letters at that office. But it must be to the nearest post-office only ; be*cause that alone ensures this certainty. If it might be sent to any other, then the endorsee might select which, and though he might send it, to any one of twenty, in the part of the country where the endorser lived, he would never receive it. Nor will this requirement be satisfied, by sending it where the endorser would be considered the most likely to receive it. No discretion is left to the endorsee. The law fixes what is to be regarded as the most likely place; and it is reasonable that it should do so. The notice is an essential thing, the law ought to secure its reception; and if any thing be permitted to supply the place of personal service, it should be something fixed, determinate, certain; depending upon no contingencies; subjected to no discretion ; controlled by no calculations, which may result from error, mistake, or even fraud. An endorser’s rights do not depend upon the accuracy of a guess. The law permits one thing, and one only, to stand in the place personal service; and that is, a sending to the post-office nearest to his residence. 13 John. 432. Whether even this notice, will be declared sufficient, in our agricultural State, in cases where the endorser resides at a distance from the post-office, may well be questioned ; but certainly nothing short of it will answer.

In determining what the residence is, we are not, as was argued, to be governed by the place where the note was dated. That is, neither in fact nor law, the place of residence. No argument which suggests itself to my mind, would render such a position reasonable, and I can find nothing in the books to justify it. 5 Bin. 541. In Chapman v. Lipscombe (1 John. 294) the decision did not turn on the fact, that the note was dated at Norfolk, whither the notice was sent. Unusual diligence was used, and the residence could not be discovered; but the person giving the notice, being informed that it probably was Norfolk, one notice was sent there, and another put into the office at New-York, which was the place, where tire note was both dated and negotiated. The real abiding place or home of the endorser, at the time, if it can be found, must be directed to; no matter what may be the character of that home or residence; which will no doubt, vary with that of the man himself. With a married man, it will be of one kind; with a single man, having no family, it will be of another, being merely his boarding-house. But the residence of the last is as important to the party, and in the eye of the law, *as the first. It must be sought with the same diligence, it must be directed to, with the same precision. Nor is there any hards! dp in this. The endorsee knows, or ought to know, his endorser, before he takes the note; especially if he relies on his responsibility: and if he chooses to take his engagement, he must do it, under the universal legal liabilities. The case in 13 John. 432, Bank of Utica v. Demott, is correctly decided, according to my understanding of the law, and shews the necessity of diligence, in finding the residence, and that notice sent to a wrong place, will not avail. Demott resided in Ovid; inquiry was made of the cashier and directors oí the bank, who were likely to know his residence; and the information was, that he resided in Canandaigua; a cancelled note, in the hand-writing of a person living in Canandaigua, drawn by the same person with the one in dispute, and endorsed by Demott, was also found; and the notice was consequently sent to that place. This was declared not sufficient. The real residence might, and should have been found; and a notice thus sent, could not be regarded as a compliance with the law.

We may then lay it down, as a position incapable of being questioned; that in order to render the endorser liable, he must receive, either a real personal service of the notice, or what the law has rendered equivalent, a notice must be sent to the post-office nearest to his actual residence. Until this be done, the endorsee has no possible claim against him; and until he proves it, he cannot call upon the endorser to make defence. The contract is a specific one, the proof of every thing necessary to complete his right, must be strict. The defendant cannot be called to shew the negative of any one part of it.

When we apply these principles to this case, I apprehend the rights of the parties will be readily understood. When the motion for a nonsuit was made, the following facts may be considered as proved. 1. That a regular and legal demand, according to the tenor of the note, had been made; that there was a refusal of payment and a protest. 2. That on the following day, a letter containing a notice of this demand, refusal and protest, was put by the notary, into the post-office, addressed to tire defendant, at Flemington. That it was sent to that place, because the notary was informed by one Samuel Holcombe of New-Brunswiclc, a *merchant whom he understood, came from the part of the country, where Saxton lived, and had connexions in trade there, that Flemington was the most likely place of his receiving a notice; and another letter, in all respects similar, was sent to the same place, to Thomas Cordon another endorser. But no other proof of residence, or actual notice was given.

Prom this statement, it cannot but be manifest, that no actual personal notice was given, nor was there any one fact, from winch a jury could fairly and legally infer it. It was however, strenuously insisted by the counsel the plaintiff, that this evidence ought to have been left to the jury, as some proof of actual notice ; because the place was a likely one for him to receive it; and Gordon the other endorser lived there, and it was probable that he would communicate the notice. Whatever may be said of the ability displayed in the argument; the conclusion appears to my mind, to be erroneous. Several answers present themselves.

1. The notice is of the essence of the contract. It creates the liability to pay. It ought not to rest upon presumption and inference. Legal and sufficient evidence of its existence ought to be given, or the court should not permit the jury to guess and presume away a party’s rights. In this, as in ejectment and other cases, if the court be satisfied that the facts constituting the right of recovery, be not in some shape proven, it will not risk the probability that the jury will depart from the law in its verdict, but will direct the plaintiff to be called.

2. There was no proof before the jury, that Gordon the other endorser, lived at Flemington; or that Gordon ever received any notice.

3. Such proof, if given, would not have affected the cause. The responsibilities and rights of the endorsers, are separate and distinct. A notice to one, will not authorise a legal presumption of notice to another, because he is, in no respect bound to give it.

4. If Gordon had given notice to Saxton, it could have availed the plaintiff nothing. To fix the liability of the endorser, the notice must be from the .very party in interest, from the endorsee himself. The nature and character of the notice is distinctly marked. It must be given by the holder, or a person authorised by him. Information from a third • person, even though he should *be an endorser, or the maker himself, will be altogether insufficient. It is in fact, no notice. It could not legally be proved, or if proved, it could not avail. Kyd 80.

5. No legal presumption can arise from the evidence, that defendant was likely to receive a notice at Fleming- ton. The law knows but one such likely place, and that is the nearest post-office.

No proposition can therefore be more manifest to my mind, than that the plaintiff did not make out such a case, as would in law, justify a recovery; and that he ought therefore to have been subjected to a nonsuit.

I do not think it necessary here, to go into an investigation of the question, which tribunal has jurisdiction over the reasonableness of the notice. The facts do not fairly raise the question; nor could it profit the plaintiff, were we to determine, that it was a question altogether for the jury. He has no rights, unless he prove that a legal notice was given. If he fail in this, both court and jury are required by law to decide against him. But should the case be submitted to the jury, and they still find in his favour, the court would be compelled to set aside their verdict.. It will never silently see a verdict recorded, which is manifestly against law, and the rights of the parties. The court ought, as far as possible, to avoid such a result, by charging the jury with great explicitness, as to the law arising upon the facts.

In forming the conclusion, to whieh I have arrived, I have paid no attention to what was urged, respecting the verdict being against the evidence, which related to the consideration and filling up of the notes. That part of the case, certainly does exhibit an aspect, which induces a strong desire to see it further investigated; but perhaps would not, of itself, absolutely call for a new trial. I doubt the propriety of admitting George Holcomb as a witness, and it seems to be proper that the jury should judge without control of the credibility of Smiley, as well as Holcomb and Large. I confess however, that the judgment which they did form about it, seems strange and extraordinary.

Upon the whole, from the best examination which I have been able to give the subject, I am of opinion. 1. That the court erz’ed, in what was said respecting the custom of the bank. 2. That the plaizztiff had not proved sufficient to authorise the case to go *to the jury. 3. That the verdict, being manifestly against the legal liabilities of the endorser, ought to be set aside.

By the Court. Let the verdict be set aside, and a new Feb., 1818. trial granted. 
      
      
         Halsey vs. Salmon, Pen. *917.
      
     