
    *Early v. Preston.
    January Term, 1855,
    Richmond.
    Absent, Thompson, J., and Gilmeb, J. (The last named judge had been counsel in the case in the court below.)
    Bil! of Exchange — Notice of Dishonor — Time of Posting Notice — Evidence.-’—A bill of exchange is placed by the holder in the hands of the cashier of the Farmers’ Bank at Lynchburg, for collection, and by him endorsed and sent to the cashier of the Farmer’s Bank at Richmond (the place of residence 6f the acceptor). The note is not paid at maturity, and is protested on the 20th August, 1842. On the same day, the notary who protested the bill-; and who is ignorant of the residences of all the parties but the acceptor, encloses notices to them of the dishonor of the hill in a letter to the'cashier at Lynchburg, to he forwarded by him to the several parties, by mail. None of them live in Lynchburg.
    It does not appear when the letter reached the cashier at Lynchburg; nor when the notice to one of the endorsers, (the defendant in the suit,) was put in the post-office at Lynchburg; nor when the mails left Lynchburg. In a case in which these deficiencies in the proof existed, the jury found a verdict for the-plaintiff; and a motion for a new trial being-refused, j udgment was entered on the verdict. Held :
    i. Same — Same—Same—Same—Due Diligence. — The court, in the absence of proof on these points, cannot hold that due diligence has been used to serve the notices of dishonor. The verdict of the jury against the indorser must, therefore, he set aside, and a new trial awarded.
    2. Same — Same—Same—Same—Onus Probandi. — It is incumbent on the holder of a hill of exchange or note to show that due notice of the dishonor thereof was given to the party whom he seeks to hold liable, and the onus probandi is exclusively on him.
    3. Same — Same — Same — Same — Due Diligence-Question of Law. — The question of due diligence, in serving notice of dishonor, is a question of law, and if there he doubt or difficulty in making proper deductions from the evidence, it must he solved by the court, as If the jury had not passed on the evidence.
    4. Same — Same—Same—Same—Judicial Notice. — The court will not take judicial notice of. the fact that the next day after protest, or receipt of notice thereof, is not a mail day; or of the time it requires for a letter to go by mail between any two places. Such matters, if material, must he proved.
    *5. Same — Same—Same—Who May Give Notice —Sunday.—Any party to a hill of exchange, or the notary who protests It, may give notice of its dishonor ; and such notice will he sufficient, if it he sent by the notary on the day after, or the next mail day after protest; or by any party thereto, on the day after, or the next mail day after such notice is received by. him— excluding Sunday in both cases.
    
      6. Same — Same—Same—Evidence — Post-flark. — The post-mark of a letter is not of itself evidence of the time it was deposited in the office, hut it is prima facie evidence that it was mailed on the day stated therein.
    7. Same — Pleading—Presentment and Demand — Appellate Court. — A count in a declaration on a protested hill of exchange, which does not aver presentment and demand of payment, is bad on demurrer, and it is error to over-rule such demurrer ; hut an appellate court will not reverse a judgment for such error, if the presentation and demand of payment is sufficiently alleged in the other counts, and no injury could have resulted to the defendant therefrom.
    Ia 1842, Smithson H. Davis drew a bill of exchange on Samuel S. Saunders, a copy of which, with the endorsement thereon, is as follows:
    “Lynchburg, February 18th, 1842.
    “S2,000. Six months after date, pay to the order of Joab Early, two thousand dollars, for value received.
    “Your obedient serv’t,
    “S. H. Davis.
    “Mr. Samuel S. Saunders, Richmond.
    1 ‘Accepted.. — Sam’l S. Saunders.
    “Endorsed. — J. Early, Pleasant Preston.
    “Pay J. G. Blair, Esq., Cash, or order.
    “A. Tomkins.”
    When the bill became payable, it was protested for non-payment by Archibald Blair, a notary .public in the city of Richmond, the place of residence of the acceptor. Pleasant Preston was the real owner of the bill, and had placed it in the hands of Tompkins, Cashier of the Farmers’ Bank at Lynchburg, for collection. After the protest, Preston demanded the payment of the note from Early, his prior endorser, (who was an accommodation endorser, and) who resisted the pay-merit on the ^ground that notice of protest had not been given to him in due time, and in a proper manner, and that so he was not liable on account of the laches of the holder.
    In April, 1843, Preston brought an action of assumpsit against Early, in the Circuit Court of Eranklin county. The declaration was demurred to, and the demurrer being sustained, the case was sent back to rules. After these and various other proceedings in the case, an amended declaration was filed, containing six counts, the first four of which were demurred to, and the demurrers overruled by the court. The defendant then pleaded non-assumpsit, and a jury was empanelled to try the cause. During the progress of the case, six bills of exceptions were filed to rulings of the court, on various questions of evidence.
    It seems unnecessary to notice these questions, or those arising on the demurrers, any further, (except in one instance,) it having been conceded, on all hands, in the court here, that the rulings of the court below were right in respect to the others, and they, consequently, having received no consideration here.
    The point alluded to in the above exception was one arising on a demurrer to the third count of the amended declaration. That count had no allegation of presentment at the house or place of business of the acceptor, or of a demand of payment from him; but instead of such allegations, stated that the bill was produced and exhibited for payment at Richmond, &c., “and payment thereof would have been demanded of the said Samuel S. Saunders, if he could have been found, at Richmond, the same being the place of residence of the said Saunders, and the place where the said bill of exchange was made payable. But, upon diligent enquiry being made for the said Samuel S. Saunders at Richmond aforesaid, on the said 20th day of August, 1842, he, the said Samuel S. Saunders, could not be found at Richmond aforesaid,” &c. &c., “and did not pay the said bill,” &c.
    The jury, after hearing the testimonj', found a verdict for the plaintiff, for the sum of $2,000, with ^interest thereon from the 20th day of August, 1842, till paid. The defendant moved the court to set aside the verdict of the jury, and to grant him a new trial, which motion the court over-ruled, and judgment was entered against him for the amount found by the jury. The defendant excepted to the opinion of the court refusing him a new trial; and in the bill of exceptions the evidence before the jury was set forth, substantially, as follows:
    Archibald Blair proved that in the afternoon of the 20th of August, 1842, after the bill was placed in his hands, by J. G. Blair, Cashier of the Partners’ Bank at Richmond, he called at the counting-room of S. S. Saunders, the acceptor, and demanded payment of the same, of his clerk, before sunset; that the clerk replied, “Mr. Saunders is at the North, and it cannot be paid;” that it was not paid, and he duly protested the same for non-payment (the bill and protest were set forth) — that he thereupon enclosed notices for S. H. Davis the drawer, and J. Early and Pleasant Preston endorsers, to A. Tompkins, Cashier, Eynchburg, as was usual in such cases where the place of residence of the parties was not known; that he put the letter in the post-office at Richmond on the same day, and that the notices to the parties stated the non-payment and protest of the said accepted bill. John W. Dudley proved that at the time of the protest of the bill he was an officer of the office of discount and deposit of the Earmers’ bank at Eynch-burg; that Alexander Tompkins, cashier at the said branch, delivered to him the aforesaid protest and two notices of the dishonor of the said bill; but he did not remember when they were delivered to him, nor did he know when said notices and protest were received by Tompkins; that it was the custom of the bank to forward immediately after reception all such notices by mail; that Tompkins directed him to give the proper direction to the notices aforesaid for the plaintiff and defendant, and to mail them; that at the time of delivering the notices to him *Tompkins professed not to know the place of residence of the defendant, but stated to him what he, (Tompkins,) believed to be the proper post-office of the plaintiff; that he thought Tompkins was mistaken as to the office of the plaintiff, and he determined to enquire of Davis & Brothers, merchants then living in Eynchburg, as to the post-office of the plaintiff and defendant; that he applied to the said Davis & Brothers because he believed that the defendant resided in Bedford, and he knew the said Davises had been deputy sheriffs in that county, and were born and raised there; that he did enquire of them, but of no one else, and was informed by one of them, who professed to know the residence and post-office of the plaintiff and defendant, of the post-office of the plaintiff, and of a post-office which said member of the firm said was the post-office of the defendant. What was the name of the post-office of the defendant which was thus given, he did not remember, nor did he recollect the county in which it was situate. That he directed said notices according to the information thus received, directing that to the plaintiff to Davis’ Mills, Bedford county, and that to the defendant to the office, the name of which was given him as aforesaid, and mailed them immediately, at the same time and on the same day on which they were delivered him by said Tompkins; that said notices were signed by Archibald Blair, notary public, and that the paper in the following words, viz:
    “Richmond, 20th-Aug., 1842.
    “Sir: Please take notice that a draft drawn by S. H. Davis on Sam’l S. Saunders, dated Lynchburg, the 18th of February, 1842, for two thousand dollars, at six months date, and endorsed by Joab Early and Pleasant. Preston and A. Tompkins, Cash, has been protested for non-payment, at the request of the President and Directors of the Farmers’ Bank of Virginia, payment having been refused at the counting-room of S. S. Saunders on the 20th instant, and you are held *liable as endorser for all loss, damages, principal, interests, cost and charges, sustained or to be sustained by reason of the non-payment aforesaid.
    “Yours,
    “Archibald Blair, Not. Pub.
    . “To Pleasant Preston.”
    (Direction) — Pleasant Preston, Esq., P. M., Davis’ Mills, Bedford co., (Post-Mark not legible)- — -was the same notice so mailed to tl¡ie plaintiff. That at the time aforesaid it was his duty to mail all notices in which the.; said branch bank was concerned; that Smithson H. Davis, the drawer of said noté, lived in the town of Lynchburg, and that said Davis was often absent from said .town, and was a director of the James River and Kanawha Company'; that he did not remember whether said Davis was in Lynch-burg or not when said notices were given to him; that he did not enquire of said Smithson H. Davis personally', or at his residence or house of business, in relation to the residence of defendant.
    Samuel Hale proved that he well knew the defendant and the members of the firm of Dav¡is & Brothers; that defendant lived in - 1842 in Franklin county, within six or seven miles of the Bedford line, and had lived there and at the same place for 30 or 40 years; that his residence was a well known one in the said county; that the members of the firm of Davis & Brothers wer$.well acquainted with the defendant, and were born and raised in Bedford county, between 17 and 20 miles from defendant’s residence; that he did not know whether said -Davises were acquainted with the residence of the defendant, but had no doubt they, were; that the plaintiff was well acquainted with defendant, and had been for many, years; that plaintiff had lived a number of years ago in Franklin county about 15 .or 16 miles from the defendant’s residence, but now lived in Bedford county about 25 or 27 miles from the defendant’s ; that he had no doubt but that plaintiff was acquainted *with defendant’s residence during the year 1842, as it was as notorious a one as any in the county.
    Moses G. Carper, stated that in the year 1842 the members of the firm of Davis & Brother's were engaged in mercantile business, with other persons, at Franklin courthouse; that some one of said Davises came occasionally to the county, he thought, two or three times a year; that the said business was conducted by one of the persons engaged with -those who resided in Franklin.
    . The defendant also proved by said Dud- 1 ley, that a very short time before the trial of this cause, the plaintiff told him, said Dudley, that the bill aforesaid had never belonged to the bank, but that it had always belonged to said plaintiff; that said plaintiff was actual owner thereof, and that it was placed in bank merely for collection for said plaintiff. The plaintiff had been endorser for Smithson H. Davis, the drawer, on a note in bank; that said bank had no-1 tified him that said note could not longer be discounted, and that plaintiff had been compelle4 to take up said note by giving his own notes for the amount thereof, with his own endorser; that the said bill on which this action is brought had been given him by said Smithson H. Davis to indemnify him for said responsibility; that said plaintiff had paid about $1,000 on said note, and was responsible for $1,000 more on a note still in bank.
    The defendant further proved by Smithson H. Davis,’ Jr. that he acted as clerk for his father, and was familiar and conversant with his commercial and business affairs. The witness proceeded as follows:' “In consequence of his frequent absence from home, often at long intervals, the entire manage-' ment of his affairs devolved upon me. I was thus engaged in the employment of my father, and intimately acquainted with his commercial and business transactions from about the year 1832 or 3 until the commencement of the year 1841, during which time it is within my knowledge that Colonel Joab Early was a general endorser of my *father’s; that he granted and confided to my father his blank endorsements, several in number at a time— generally remitted by mail, but frequently on his personal presence in Lynchburg he would sign a number' of blanks and leave them in the possession of my father. The blanks thus confided to my father were not restricted, so far as my knowledge extends, to any specific purpose. It seemed as if they were granted to my father through a degree of friendship and a high sense of confidence, to be used for any purpose wherein they might be of service, and they were variously and indefinitely used; discounts were frequently obtained at the different savings’ institutions for various amounts, and in some instances at the Farmers’ and Virginia Banks, and were also used as collateral security to individuals. In the absence of my father the blanks of Col. Early were almost invariably left in my possession,, to be used or discounted in case of necessity, as might happen in the event of a longer detention from home than he anticipated, or some oversight in making his moneyed arrangements, and the great difficulty of making perfect and certain provision for everything. In cases of this sort I have often used the blanks of Col. Early, in the absence of my father, for such amounts as the case or emergency might require. During the time I was engaged in the employment of my father I never heard of any complaint on the part of Col. Early, or otherwise, of the use made of his (Col. Early’s) blanks by my father.
    From the judgment entered in the case, the defendant Early appealed to this court.
    Patton, for the appellant, submitted the case on the petition of appeal, stating at the same time that he concurred with the judge below in his rulings on all the questions raised in the record, except his refusal to sustain the demurrer to the third count, and his decision over-ruling the motion for a new trial; on which question he should ask leave to reply to the counsel for the ^appellee. The objection to the third count is, that it does not allege a presentment at the house or usual place of business of the acceptor, and a demand of payment; it merely alleges that he could not be found in Richmond.
    Robinson, for the appellees:
    I apprehend the only question to be considered, is that arising on the refusal of the court to grant a new trial. The other questions are unimportant as compared with this. Let it be that the bill of exceptions well states the evidence. I shall maintain that the court could not have granted a new trial upon it.
    The bill arrived at maturity, was presented for payment, and protested for nonpayment on the 20th August, 1842. It is desirable to know what day of the week the 20th August was, and for this purpose the almanac may be examined, though not made a part of the record. Even an appellate court will, when it becomes material, ’look to the almanac to see on what particular day of the week a given day of the calendar month or year may fall. 1 Stark, on Bv., part 3, p. 401-2, | 20, note c. In the English courts the rule was applied before Virginia was settled, and has been adhered to since. In Page v. Eaucet, 1 Cro. B1L,., it appeared by examination of the almanac, that a judgment was entered on Sunday’. It was held that a trial per pais was not necessary, although it -was an error in fact, and the judgment was reversed.
    Look, then, at the almanac in this case. It appears that the 20th August, 1842, fell on Saturday, and the next day (21st) was of course Sunday, of which fact the court may take judicial notice. What, then, is the rule? The holder is not bound to mail notice until the next business day, leaving out Sunday. Howard v. Ives, 1 Hill’s N. Y. Rep. 264-5.
    At the time the bill was protested, the Earmers’ Bank of Virginia was the holder, and that they gave notice in due time, is proved by the deposition of Archibald *Blair. Payment was demanded, and refused, the protest made, and the notices forwarded on the afternoon of August 20th, 1842, two days before the notary was bound to forward them. There can be no question, then, as to the notices having been sent to Lynchburg in time; and the only question therefore is, as to their being sent from Lynchburg in due time. As to this, Dudley proves that the notices were mailed by him on the same day on which they were delivered to him by Tompkins; true he does not know the particular day on which the notices and protest were delivered to him, nor does he know the particular day on which they were received by Tompkins; but he does know that they were delivered to him, with directions to mail them, and that it was the custom of the bank to mail all such notices immediately after their receipt; and that he sent them on the day he received them from Tompkins. In such a case a jury might pay some respect to the maxim, omnia presumenda rite esse acta. If, then, due diligence was used to find the post-office of the defendant, the notices were regular, even though a mistake was made as to the office. Not knowing the post-office, Dudley made enquiry, and sent the notices to the office which he was informed by persons likely to know, was the proper one. This was sufficient diligence. Bank of Utica v. Bender, 21 Wend. 645; Ransom v. Mack, 2 Hill, 592.
    It is said in the petition of appeal, that there is a necessity of precise proof as to the time of notice, and that the burthen is on the plaintiff; and for this a reference is given to 2 Greenleaf on Ev. § 186, where the author cites Lawson et al. v. Sherwood, 1 Starkie’s Rev. 251. In that case, the only evidence of dishonor was the statement of a witness that he sent a letter containing the notice, two or three days after the dishonor ; and as that was a case in which the third day would be too late, and the evidence did not authorize a presumption that the notice was on the second, the plaintiff was non-suited. The case of Friend v. Wilkinson et al., 9 Grat. 34, was treated by the Court of Appeals as "^similar in principle to Lawson v. Sherwood. In that case (Friend v. Wilkinson) the notary who put the letter in the post-office, was not examined, and there was no evidence from which the jury could ascertain the particular day on which the notice was mailed. Here the case is different ; the plaintiff has examined Dudley, and there is evidence from which the jury might ascertain with reasonable certainty the dajr the notice was mailed.
    There is great distinction between the fact and reasonable evidence of it, and this distinction is well taken in Clarke et als. v. Dunnavant, 10 Leigh, 13; and Thompson v. Hall, 14 Eng. Law and Equity Rep. 598. The object of the law is to guard against the great injury’ -which might result from defect of memory in witnesses. Apply this principle, and then I submit that in view of the length of time between the transaction and the date of the testimony of the witness, the nature of the facts deposed to, the difficulty of obtaining the testimony of the cashier of a bank, the presumption that he is acquainted with the law as to the time of giving notice, the custom of the bank to forward notices immediately on their receipt; the jury might I well have applied the maxim already quoted, especially as there were no circumstances rebutting- the reasonable presumption that every thing was properly done.
    It is said in the petition that there is no evidence of the time when the notice to Early left Lynchburg. Now it is proved by Dudley that the notices to Early and Preston left Eynchburg on the same day. The notice to Preston, filed among the papers below, has been brought here by subpoena duces tecum, and I find on examination that the post-mark (though said in the bill of exceptions to be illegible,) is sufficiently plain, and shows that the notice was put in the office on the 2Sth of August. I submit, then, that the jury was well warranted, under all the circumstances, in concluding that notice went from Eynch-burg in due time.
    The holder of a note is only bound to give notice as *soon as he reasonably can. Baldwin et als. v. Richardson et als., 1 Barn. & Cress. 24S; 8 Eng. Com. Baw Rep. 66. He need not write on the very day he receives notice, but may write by the next post after the receipt. Geill v. Jeremy et al., 1 Mood. & Malk. 61; 22 Eng. Com. Law Rep. 249. It is true, it is not proved here what was the next post after Tompkins received the notice, but there are circumstances sufficient to shew that the notice was in time. It was not necessary to prove that the mail did not leave Richmond on Sunday, the 21st of August. In fact, there was no mail on that day, and the presumption of law is in accordance with the fact. Its presumption, in the absence of proof, is, that there is no business on Sunday, and the general rule is, that Sunday is excluded from the computation, as to the time of notice of dishonor. Smith’s Mercantile Law, 250. Nor was it necessary to prove what all the jury knew, that in August, 1842, there was no railroad from Richmond to Lynchburg; that the mail then went in stages, and that the two places were 120 miles apart. The jury might well have inferred from these known facts, that it took two days to carry the mail between the two places, and that so a letter leaving Richmond on the morning of Monday, the 22d, would not be delivered from the post-office at Lynchburg until the morning of the 24th; and that so the notice mailed to Early on the morning of the 25th was in due time. The case is not here on a special verdict, but on a motion to set aside a verdict as contrary to evidence; and the question is, what a jury might reasonably infer from the evidence. Surely a jury might take notice of some of the matters above adverted to, which it is established courts may take judicial notice of. It is laid down, that the King’s courts take notice of the counties of England. 2 Inst. 559;. Queen v. St. Maurice, 16 Adol. & El. N. S. 908; 71 Eng. Com. Law Rep. 908; and one reason is, because they are .mentioned in acts of Parliament. Deybel’s case, 4 Barn. & Aid. 243; 6 Eng. Com. Law Rep. 413. This *rule applies with increased force in this country. (The counsel here adverted to the various acts of Virginia in regard to elections, circuit courts, mileage, &c., from which he shewed that Lynchburg is in Campbell county, and is distant 120 miles from Richmond. He then contended that of these and similar matters, courts and juries might take judicial notice, and from them draw reasonable inferences; and that the court should not set aside the verdict of the jury because it would have given a different verdict; but in order to do so, must ascertain that the verdict was clearly contrary to the evidence. )
    But it is said that Preston knew Early’s residence, and did not give notice. According to common usage, the banks always give notice, the endorser never; and it is a very proper and convenient usage. The endorser may give notice if he pleases, but he need not do it, provided some one else does it; and it has long been settled, that notice from any person who is a party to the bill is sufficient; Wilson v. Swabey, 1 Starkie, 34; 2 Eng. Com. Law Rep. 283, S. C. ; Jameson et als. v. Swinton, 2 Camp. 373. Whatever doubt there may at one time have been upon the question, was removed by the case of Chapman v. Keane, 3 Adol. & El. 193; 30 Eng. Com. Law Rep. 69.
    On the whole, I submit that the motion for a new trial was properly over-ruled:
    But it is said that the court should have sustained the demurrer to the third count, for want of allegation therein of presentment of the note and demand of payment at the place of business or residence of Saunders, he being absent from town. In Williams v. Bank of United States, 2 Peters, 101, it is held that a verbal notice, sent to the office of the party, is sufficient, and if nobody was there to receive it, it was his fault, and not that of the holder of the note. Now, here it is alleged that diligent search was made for Saunders, and he was not found, and I think that is sufficient, and comes within the case cited. But even if there were *error here, it would not be competent for the court to reverse the judgment on that account, the presentation and demand of payment being sufficiently stated in the other counts, and no injury, therefore, resulting to the defendant on account of this error. 1 Rob. Prac. 664; Lively v. Ball, 2 B. Monroe, 54; Ewing, &c. v. Gist, Id. 465; Wilson v. Ayres, 3 B. Monroe, 467.
    Patton, for the appellant:
    I do not deny that the Cashier of the Partners’ Bank here, or the Cashier of the Farmers’ Bank at Lynchburg, or the notary, were competent agents to give due notice (vide By les on Bills, 330) ; nor that the notice (if otherwise sufficient) may be given on the day the bill falls due (after demand), and after the usual hours of business (Ibid. 329-30) ; nor that Sunday is not to be computed in respect to the time within which notice of dishonor should be given (Ibid. 331). I do contend, however, that an endorser is entitled to strict notice, or sufficient legal excuse to be given for failure of notice (Ibid. 341) ; that he is entitled to notice the next day after the dishonor by the holder, or by each successive endorser after him, the next day after notice of dishonor to him (Ibid. 333-4) ; and though each party to the bill is entitled to one day after he receives notice, before he is required to give notice to his immediate endorser, or other antecedent party, yet the over diligence of one is not to make up for the want of diligence of another (Ibid. 333-4). However diligent Blair may have been, yet, if his notice was sufficient, it does not excuse the want of diligence of Tompkins or Preston. If there be any laches in serving notice on Early, no matter though there be diligence in ever}' person but him who is guilty of laches, the endorser is discharged.
    These things being premised, I come to the questions between Mr. Robinson and myself.
    His first position which I shall consider, is, that the jury having found a verdict, a new trial ought not to be ^granted, if there was sufficient evidence for them fairly to have found a verdict.
    In answer, I have to say, that in this case the certificate sets out the testimony distinctly, and there is no conflicting testimony, and so the case comes within the principle of Pasley v. English et ais., S Grat. 141. In this case, moreover, all the testimony raises a mere question as to the sufficiency of the proof of notice, which is purely a question of law, and is precisely that sort of question to which the Court of Appeals have been struggling to limit motions for new trials. The case in 21 Wend., cited by Mr. Robinson, decides that such testimony raises a question of law, and this is settled by the numerous cases cited in Byles on Bills, 322; Ibid. 327, note 1, and in Greenl. on Ev. vol. II. $ 186. It is also held here, that there must be strict proof of notice, and that the burden of proof is on the holder.
    This question being thus disposed of, I contend,
    1. On the authorities already cited, and on the case in 2 Hill, cited by Mr. R., that there is a fatal defect in the very first step in the proof; for these authorities show that it was incumbent on the notary to have given notice to Early; indeed, the only notice pretended to have been sent him was that of the notary. Was that notice sufficient? It appears that Blair sent no notice to Early, but sent one to Tompkins, Cashier, at Bynchburg, to be forwarded, I presume, to Early. Now, the bill was not drawn payable in any bank, and Early had nothing to do with the banks, or either of them. He had, therefore, the right to the same notice as any other endorser of a bill not passing through a bank, and was not to be affected by their usages, if there were any such; and yet Blair mailed no notice to Early, and does not show, that enquiry or other effort was made to ascertain his residence; all that he says is, that he forwarded the notices to Tompkins, in accordance with the custom in such case. Vide Byles on Bills, 327, and 2 Greenleaf, already cited. The case in 1 Peters, cited by Mr. R., recognizes these principles as strongly as *any other, and the qualifications in that case have obviously no application here, for Early had not left his residence, or gone out of the State; on the contrary, it is proved that the only real holder well knew his residence.
    2. But suppose it was sufficient for Blair, the notary, to send the notice to Early in a letter to Tompkins, and that it was sufficient for Tompkins to transmit Blair’s letter, instead of giving notice himself, then how stands the case?
    When did the letter of Blair reach Tompkins? When did Tompkins mail it to Early? On these important questions there is no proof. It would have been easy to prove both these things, if the plaintiff had chosen to examine the post-master at Lynch-burg or Tompkins; but, instead of doing so, he chooses to rely on the assumption, that the jury knew when the mail left Richmond for Lynchburg, and the presumption that the mail did not run on Sunday. These are, obviously, not matters that this court can judicially know, or that the jury or court below had any right to assume. If they were true, and would help the plaintiff’s case, they should have been proved.
    So as to the custom of the bank. If it were of service against Early, there was no authoritj’ for relying on the testimony of Mr. Dudley — a mere runner of the bank— as to the custom of the Cashier in the discharge of his duties. The Cashier was the proper person to prove when the notice was received, and when it was given to Dudley to be mailed; and the custom of the bank was wholly insufficient evidence of a fact, as to which there was a living witness, as well as the books of the bank, which could, and, if examined, would, have proved the exact fact. It was a question of law to be tried, and the court had no right to be satisfied with such inferior proofs, and such unauthorized assumptions and inferences. The authorities are uniform that such evidence is insufficient in law. Vide Chitty on Bills, 400; Greenleaf on Evi. '4 193; E'riend v. Wilkinson, 9 *Grat. 34, cited by Mr. Robinson. This last case, though not exactly like the one at bar, is in support of the argument I am presenting, and is a direct authority on the propriety of this court’s granting a new trial in this case.
    Robinson. A new trial is addressed to the sound discretion of the court, and will not be granted, unless justice requires it.
    Patton. I deny that the question in this case is one addressed to the discretion of the court. I have already contended, that it is a naked question of law; and, indeed, I deny, in any case, that the motion for a new trial is addressed solely to the discretion of the court. They have nothing to do with the question whether justice has heen done, if error has, in their opinion, been committed by the court below.
    X submit, then, that there is no satisfactory proof of diligence in the first or second steps in the proceedings.
    3. But suppose I am wrong in all this? I will consider Mr. R.’s argument, on the assumption that the letter of Blair was not received in Lynchburg until Tuesday, the 23d, and that that letter is post-marked the 25th of August; (Mr. R. says, indeed, that the letter would not be delivered from the post-office at Lynchburg until the morning of the 24th, though arriving in two days from Richmond, to wit: on the 23d; but this is an assumption wholly unwarranted by any proof, or even by probability). This is only to make it plain, that due diligence was not used in p.oint of fact, instead of its being only not proved that due diligence was used. The holder, in that case, was bound to put the letter into the post-office on the 24th, unless it was proved that no mail went to Early’s supposed post-office until the 26th. Mr. Robinson admits that the letter must have been put into the mail on the 24th, in order to go by the mail of the 25th; but, in that case, it would have been post-marked the 24th, and it is assumed *to have been post-marked the 25th, (as is probably the fact, though the plaintiff would not admit the fact below,) and, of course, could only have gone by the mail of the 26th. The post-mark on the letter is prima facie evidence of the time and place of putting it into the mail. 2 Greenl. Ev. 'i 193; and so it appears Tompkins did not send the notice the day after he received it, as he was bound to do. Vide Geill v. Jeremy et al., 22 Eng. Com. Law, 249 — cited by Mr. R.
    4. As to the demurrer to the third count: It should have been sustained. The case in Peters’ Rep., cited by Mr. R., shows that presentment and demand of payment should have been made at the residence of Saunders, and the third count does not allege such presentment and demand. It'is clearly defective. Vide 2 Greenl. § 177.
    But it is said, that even if there is error here, yet if the evidence makes out the case on the other counts, the judgment will not be reversed for such error.
    None of the cases cited for this position sustain it; and non constat, that the jury believed the proof under the other counts. The court could not possibly know on what ground the jury decided. In one of .the cases cited by Mr. R. on this point, there were two counts on the same covenant, only reciting the matter in different ways; and the court there held, that error in one was no ground to set aside the judgment, for it was good on the other count; but in this case, the counts are not the same. The several cases cited on this point áre distinguishable from the case at bar in the same way.
    
      
      See monographic note on “Bills, Notes and Checks" appended to Archer v. Ward, 9 Gratt. 622.
    
   FIELD, P.,

delivered the opinion of the court as follows:

I have examined the record in this case, and considered all the questions presented in the seven bills of exceptions last taken by the defendant. In reference to the first ■six of these exceptions, I concur in opinion with the Circuit Court, and need say no more about them.

*The question arising upon the seventh exception, is the only question about which there can be any serious difficulty. It is the one taken to the opinion of the court, in over-ruling the defendant’s motion for a new trial. The suit was brought by the first endorsee of a protested bill of exchange, to recover the amount of the bill of the payee, he having endorsed the bill to the plaintiff. The defendant resisted the claim, upon the ground that due notice of the dishonor of the bill had not been given to him, nor proper diligence used to give him such notice.

The bill was drawn at Lynchburg on the 18th February, 1842, by S. H. Davis, in favor of Joab Early, upon Samuel S. Saunders of Richmond, for $2,000, payable six months after date. It was accepted by Saunders. Early endorsed the bill in blank to Pleasant Preston, who, for the purpose of having it collected, endorsed his name on it, and placed the bill in the hands of A. Tompkins, Cashier of the Farmers’ Bank at Lynchburg, who endorsed and sent the bill to J. G. Blair, Cashier of the Farmers’ Bank at Richmond. The six months after the date of the bill expired on Thursday, the 18th of August. The three days of grace would have made the day of payment on the 21st of August; but that day being Sunday, the bill was due and payable on Saturday, the 20th of August. On that day it was duly protested for nonpayment ; written notices of the dishonor of the bill were prepared for Davis, Early, and Preston, respectively, enclosed in a letter directed to A. Tompkins, Lynchburg, and placed in the post-office at Richmond on the same day. On what day the mail containing this letter left Richmond, or when it arrived at Lynchburg, does not appear from the evidence; nor does it appear at what precise time the notices were placed in the post-office at Lynchburg, nor when the mail, that carried them away, left Lynchburg. It is proved by John W. Dudley, an officer of the bank at Lynch-burg, that a letter containing the notice for Early, and another containing the notice for *Preston, were put in the post-office at Lynchburg by him, by the directions of Tompkins. This witness further testified, that he did not know on what day the protest and notices were received by Tompkins from Richmond; nor did he remember the day on which Tompkins handed the letters above mentioned to him. The custom of the bank was, to forward immediately after reception, all such notices by mail. He put both letters in the office at the fame time, and on the same day that they were handed to him by Tompkins. The letter to Preston was received by him, and has been filed as evidence in the cause. The post-mark on that letter is, ! ‘Lynchburg-, 25th August.” This was on the Thursday next following the protest of the bill. The post-mark is not evidence per se that the letter was deposited in the office on that day; it is prima facie evidence that it was mailed on that day. Byles on Bills, 325, note 1. To entitle the plaintiff to recover of Early, it is incumbent on him to shew that Early had received due notice of the dishonor of the bill, or that due diligence had been used to give him such notice. The onus probandi devolved on the plaintiff. Upon the protest of the bill in Richmond, Blair, the holder, could have fixed the liability of all parties, bj' sending a notice of the dishonor of the bill directly from Richmond on the next day after the protest was made, if the mail went out on that day; and if it did not, then by the first mail that did leave after the day of protest. But if he did not choose to do this, it was sufficient for him to give the notice to Tompkins, his immediate endorser, and thereby devolve upon him the duty of giving further notice. When Tompkins received the notice, it was incumbent on him to give further notice, either to the parties, or to his endorser, Preston; and he was entitled to one day for the purpose, or until the next mail, if the mail did not leave upon the day next following his reception of the notice. It does not appear, as above remarked, on what day the letter and notices reached Eynchburg, and were received by Tompkins; *nor on what day the letters to Preston and Early were deposited in the post-office at Eynchburg. In the absence of proof to the contrary, Early has a right to insist that Tompkins received the notice on Monday, the 22d August, and deferred putting the letter in the post-office for Early, until Thursday, the third day after he received the notice of protest from ] Richmond. ]

It is not pretended, that Preston gave notice of the dishonor of the bill to Early, or attempted to give it; his right to recover is predicated upon the diligence used by Tompkins to give the notice, upon the principle, I suppose, that a notice from an intermediate party may in pleading be described as a notice from the plaintiff. Newen v. Gill, 8 C. & P. 367; 34 Eng. Com. Law, 432. Whether Tompkins used due diligence or not in his effort to give notice to Early, is a question of law, to be decided by the court upon the facts and evidence in the record, without any regard to the finding of the jury. If there be doubts upon the evidence or difficulties in making proper deductions from it, they are not to be removed or explained by the verdict of the jury, but must be solved by the court as if the jury had not passed on them, and if there be any defects in the plaintiff’s proof, the consequence of such defects must be borne by the plaintiff, upon whom the onus probandi, upon the question of due diligence, rests exclusively. The evidence in the cause show's that the bill was protested on Saturday, the 20th of August; and that a letter containing the notice of the dishonor of the bill, was put in the post-office at Richmond on the same day. The letter was directed to Tompkins at Eynchburg, one hundred and twenty miles distant; and on Thursday, the 25th day of August, (four days thereafter, besides Sunda3',) the notice to Early is in the post-office at Eynchburg. It was the duty of Tompkins, to put that notice in the post-office at Eynchburg, the day after he. received it, or in time to go by the first post that went from Eynchburg, after the day upon which he received the letter from Richmond. If he received the notice *on Saturday, he should have put the notice for Early in the post-office on Monday; if he received it on Sunday or Monday (as the fact probably was), the notice to Early should have been put in the post-office on Tuesday. If he received it on Tuesday, the notice should have been put in the post-office on Wednesday, and so on. Whether he has performed this duty or not, we cannot say, because the plaintiff has failed to show the time when Tompkins received the notice from Richmond; when the notice for Early was put in the office at Eynchburg, and when the mail left Eynchburg. On these points there is an entire failure of proof; for the want of which, the verdict was wrong, and should have been set aside, and a new trial granted.

I have examined all the counts in the declaration, upon which the cause was tried. They all appear to be good, except the third count of the last amended declaration. That count is defective in not averring a demand of payment; as to which the demurrer, instead of being over-ruled, should have been sustained. If this were the only error in the record, I should not be for reversing the judgment, for the reason assigned by Mr. Robinson in his argument; but as the judgment is to be reversed, it is proper to direct the correction of this error.

The judgment is to be reversed with costs, and the cause to be remanded for a new trial, to be had on the usual terms, with directions to the Circuit Court to sustain the defendant’s demurrer to the third count of the amended declaration.  