
    
      LOUISIANA STATE BANK vs. ROWEL & AL.
    
    Appeal from the court of the third district
    " Where the endorser lives within three po'st-officef6 there6 is ’ not sufficient.
   Porter, J.

delivered the opinion of the court This action is brought against one of the de-C J ■ . » . Jr. iendants, as endorser of promissory notes.— Various grounds of defence have been set up by her, and, among others, a want of dueand : P , regular notice of nonpayment by the maker. '

T ... - It appears, in evidencee, that the appellee . resides near to the town of Baton Rouge, and that her residence is three miles front the village, nearer the post office than any other:that the morning after the protest was made, notice Was put in the post office; that a servant from the house where the defendant resides, frequently calls before nine o’clock in the morning for letters; that they seldom remain as long as 48 hours in the box before being asked for, rarely 72, and very rarely 96. ' -

The time at which the notice was thus deposited was previous to the passage of a late act of the legislature, in respect to giving notice of the protests of promissory notes *and bills of exchange. The case must, therefore, be decided by thefex mer caloría, independent of positive legislation, and so considered, we have not a doubt of the correctness of the judgment below, in considering the notice insufficient to render the defendant responsible.

The case has been well argued, but the rea-soiling of the counsel, in our opinion, rested entirely on an incorrect view of the obligation contracted by an endorser of instruments of kind. The obligation which such an act . . , , V creates is strictly a conditional one, ana that condition is, that he will pay the money in case the maker does not, provided, due notice is given to him of the default of the former. By the lex mercaloría, this fact must proved, by establishing that knowledge of the failure of the principal to pay, was communicated personally to the endorser, or that information to that effect was left at his house. A relaxation of this rttle has been introduced for the convenience of trade, when the endorsers live at such a distance, that their residence is nigher another post office than that where the holder lives i in such case, it is sufficient to send by mail a notice directed to the endorser.- There has been another relaxation of the rule in large cities where there are establishments called the penny-post, by which letters are daily sent round to all persons residing within certain limits. These are the only exceptions we know of to the rule already stated. We have looked into all the elementary treatises on this sub¿ ject, and have examined with care the reports of adjudged cases, and we have found nothing to support, in the slightest degree, the position taken by the appellants, that depositing a no-lice in a post office when the party giving it resides in the same place with the endorser, or Hear to him, is a sufficient evidence of that notice having reached him in due time. But we have been told this is o ly going one step for-ther than other countries have gone in relaxing this rule, and that for the convenience of trade we should take that step. We see no reason of public convenience to induce us to make such a change in the law merchant, if we had the power to do so. We find none in the equity of the case. The parties must be presumed to have contracted in relation to the law as it existed at the time the notes \$ere executed and endorsed, not by the modifications which eourts might afterwards introduce into it. In any case, evidence such as this,#wou!d be furnishing but presumption in place of proof Here it is but a slight one, for it 'is proved letters remain sometimes 72 ftours before they are sent for; and how can we know the notice did not remain for this length of time. We think the case most clearly with the defendant, but that the judgment should have been one of nonsuit, instead of being final. Seevol. 2, n. s, 511.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be annulled, avoided and reversed ; that there be judgment for defendant as iñ case of non-S-0*1» with costs in the court below—those of appeal to be paid by the appellee.  