
    Jesse Godley et al. vs. David S. Goodloe.
    If the holder of a promissory note be ignorant of the place where the indorser resides at the time of protest, and cannot ascertain it after diligent inquiry, notice of protest sent to the place where the note bears date, will be -sufficient.
    The question of due diligence in serving notice of protest, when it depends on the testimony of witnesses before a jury, must be submitted to the jury for their decision, under appropriate charges as to the law from the court; if the evidence be agreed on by the parties, the question of due diligence is then one purely of law for the decision of the court.
    In error from the circuit court of Madison county; Hon. John H. Rollins, judge..
    Jesse Godley and others sued David S. Goodloe, as indorser on a note made by Keenan and Goodloe to him, and by him indorsed to the plaintiffs, the date of which was “ Tuscumbia.”
    It is not deemed requisite to notice any more of the record than to state, that at the trial the plaintiffs, having proved by the notary that they had sent notice to Tuscumbia, with other proof, referring to their inquiry to ascertain where the indorser resided, asked the court to instruct the jury, that “if the holder of the note was ignorant of the place where the indorsers resided at the time of protest, and could not ascertain it after diligent inquiry, notice sent to the place where the note bears date, will be sufficient.” The court below refused the instruction, when the plaintiffs embodied the whole case in a bill of exceptions ; and the jury finding for the defendant, they prosecute this writ of error.
    
      A. H. Handy, for plaintiffs in error.
    The error assigned is, that the court below refused the instruction asked by the plaintiffs, and set forth in the bill of exceptions taken pending the trial.
    
      This instruction is as well settled law as any doctrine of the commercial law. It is taken nearly verbatim from the decision of the supreme court of New York, in the case of The Bank of Utica v. Davidson, 5 Wend. 588, and cases there cited. But it is objected, that diligent inquiry is a conclusion of law, and that the facts should be stated which constitute this diligent inquiry, in order that the court and jury might determine whether they amounted to due diligence. But the court was called upon, and it was its province, to declare the legal principle governing the case to the jury — it was the province of the jury to determine whether the facts, as proved before them, constituted diligent inquiry. In Hoopes and Bogart v. Newman, 2 S. & M. 79, this court says, “ the question resolves itself into one of diligence, which the jury must determine from the evidence.”
    Even then, if the court below thought that the statements of the notary public, in his answer to the first interrogatory, were not sufficient to prove diligent inquiry to his satisfaction, yet it was proper to declare the principles of law applicable to the case, leaving it to the jury to say whether the evidence showed diligence to their satisfaction.'
    
      J. B. Howlett, for defendant in error,
    contended, that what constituted due diligence was a question of law for the court, and cited the following authorities : 1 Peters, 583; 3 Wend. 78, 79; I Cowen, 408; Chitty on Bills,-487, and note p. (9th Am. from 8th Lond. ed.); 3 McCord’s R. 394; 4 Wend. 398 ; 13 Johns. R. 432; 7 Lou. R.‘ 7; 2 Carr. & Payne, 300 ; Myers v. Oglesby, 6 How. R. 51.
    
      A. H Handy, in reply.
    The defendant’s counsel relies mainly on the position that the question of diligence was one to be settled by the court. The cases cited, 1 Peters, 583, 3 Wend. 78, and 1 Cow. 408, show that this is correct where the facts and circumstances of the transaction are undoubted. But such a case rarely occurs; for although it may be agreed that certain acts were done, the manner in which they were performed, and the conclusions properly deducible from the statements of witnesses in relation to these acts, are generally matters of controversy; thereby presenting the question not only of what the facts are, but of what are the just inferences from the facts as stated. It might be competent for the court to dispose of the case if it depended solely upon naked facts admitted, without reference to the circumstances and inferences alleged to pertain to the transaction. But when such inferences are relied on, as is generally the case, the question becomes a mixed one of law and fact, which must be determined by a jury. 3 Kent’s Com. 105, and authorities there cited.
   Per Curiam.

This record presents but a single question. In order to charge the defendant as indorser of a promissory note, the plaintiff’s counsel reqüested the court to charge the jury, that “ if the holder of the note was ignorant of the place where the indorsers resided at the time of protest, and could not ascertain it after diligent inquiry, notice sent to the place where the note bears date will be sufficient; ” which charge the court refused to give, and the plaintiff’s counsel excepted.

That the charge requested is in strict accordance with law is beyond doubt. In case the residence of an indorser cannot be ascertained after diligent inquiry, notice may be dispensed with entirely ; or the holder may send the notice to the place where the note bears date. This court has so decided on more occasions than one. Walker v. Tunstall, 3 How. 259; Hoopes and Bogart v. Newman, 2 S. & M. 71.

But it is contended, on the other side, that what shall be deemed due diligence, is a question of law, and that consequently the charge was properly refused. Some of the cases decide that where the facts are ascertained and undisputed, what shall constitute due diligence is a question of law. 1 Peters, 583; 6 Metcalf, 290. On this same principle, 'other cases decide that what is sufficient notice to charge an indorser, is a mixed question of law and fact, the facts being for the jury to decide, and the law for the court. Doubtless where the facts are found by special verdict, or agreed on by the parties, or rest on proof which the court may decide on, the question is one of law; but where it depends upon the testimony of witnesses given before the jury, it is proper to submit the whole question to them under appropriate charges on the law. So we held in the case of Hoopes and Bogart v. Newman. But in this instance the court cut off all inquiry, by refusing to charge either on the law or on the facts.

We do not think it necessary or proper to decide on the question of diligence as presented by the proof in the case. We only decide that the charge refused by the court contains an undeniable legal proposition, and should have been given. By refusing it, the court virtually held, that inability to ascertain the residence of an indorser, after diligent inquiry, will not excuse the want of notice.

The judgment must be reversed and the cause remanded.  