
    James Wemple vs. Lewis W. Dangerfield.
    A notice properly directed, and deposited in the post-office on the day succeeding the protest, in time to go out by the first mail of that day, provided it does not leave at an unreasonably early hour, is sufficient.
    Where, however, the first mail of the day succeeding the protest, is closed the night of the day of the protest, it is not necessary to send the notice of protest by that mail.
    This was an action of assumpsit brought to the December term, 1839, of the circuit court of Jefferson county, by James Wemple, against Henry Terrell and Thomas H. Duggan, as the makers, and Lewis W. Dangerfield as the indorser of a promissory note. The suit was discontinued as to Terrell and Dug-gan, who were not served with process, Dangerfield pleaded non assumpsit.
    On the trial, the plaintiff proved by James K. Cook, that he protested the note for non-payment, on the day of its maturity, and by nine o’clock, A. M., of the next day, he deposited in the post office at Natchez, a notice of protest, directed to Lewis W. Dangerfield, at Fayette, Mississippi, which was his nearest post-office.' The plaintiff also proved, that about the time of the protest, the mail left Natchez for Fayette but three times a week; that on the night before it left, it was closed at nine o’clock, and started at four o’clock next morning. It was not proved on what particular days of the week it went out. On this state of facts, the instructions were asked, which are set out in the argument of Messrs. Ellett and Coleman, and all refused by the court. The jury found for the defendant, and the plaintiff brought the case to this court by a writ of error.
    
      Thacher and Freeman, for plaintiff in error.
    This is an action of assumpsit, against an indorser of a promissory note, which was protested at Natchez, on the 4th day of December, 1838, at about two o’clock, P, M. of said day, and notice of protest was lodged in the post-office, at Natchez, on the following day, at nine o’clock, directed to the indorser, at Fayette, Mississippi, where the indorser resided.
    The mails left Natchez, for Fayette, three times per week, at four o’clock in the morning, of each of said mail days ; and it was proven that the said mails were closed, in the post-office at Natchez, at nine o’clock on the night previous to the departure of said mail. It does not appear, from the evidence, on what particular days of the week the mail left Natchez; but from the facts proved,-one of two things is certain — to wit, that the mail leaving Natchez tri-weekly, at four o’clock in the morning, and the same being closed at nine o’clock on the night previous to leaving, the mail must either have left Natchez at four o’clock on the morning of the day of protest, or else the mail must have been closed on the night of the day of protest, at nine o’clock. If the first position be true, the mail left on the day of protest, previous to the lawful hour of protest; it was not necessary to send notice by this mail. If the latter position be true, the mail that left at four o’clock, on the morning following the day of protest, was closed against the reception of any communications on the evening of the day of protest. It was not necessary to put the notice in the post-office on the day of protest. If it had been put in the post-office at one o’clock on the morning of the day, it could not have gone by the post of that day, because the same was closed at nine o’clock op the night previous.
    The law of congress, regulating the departure of mails, provides, “ that where the time' of departure is between the hours of nine, P. M. and five, A. M., the mail shall be closed at nine, P. M. See Post-office Regulations, Laws of 1826, sec. 76. Such was the fact in this case, as appears by the evidence.
    Notice to parties residing at a different place from that where the note or bill is payable, may be given at any time on the day following protest of same. Bayley on Bills, 262. 17 Mass. Rep. 449. 20 Johnson, 146. 1 Miller, 122. 5 Maulé & Selwyn, 68. 2 Barn. & Aid. 506. 4 Bingh. 715.
    
      
      Ellett and Coleman, for defendants in error.
    Three errors are assigned, each of which will be considered in its order.
    Í. That the court below erred, in charging the jury, “ That to charge the indorser, it is necessary for the notice of protest to be placed in the post-office, if sent by mail, in time to go out by the mail leaving said post-office on the day succeeding said protest, and that it is incumbent on_the plaintiff to prove the same.”
    It was formerly considered necessary, and was so held, that in order to charge a distant indorser, the notice of nonpayment, if sent to him by the holder, must be mailed by the first post leaving after the protest; and if sent by a subsequent indorser, by the first mail after he himself had received notice.
    Modern decisions have ameliorated the right of the old rule, and it is now settled in England, that “ when the notice is to be sent by the post, it will be sufficient if sent by the post of the following day.” Bayley on Bills, 264.
    In Geill v. Jeremy, Lord Tenterden decided, that to charge' the indorser, it was sufficient if the notice was sent by the next post after the day on which the party himself received notice. 1 Mood. & Malk. 61.
    The same doctrine is recognized in 3 Conn. 489. 17 Mass. 449. 2 Camp. 208. 20 Johns. Rep; 146. 1 Miller, 122. 5 Maulé & Selwyn, 68.
    When the parties do not reside in or near the place of the dishonor, it suffices to forward notice by the general post that goes out on the day after the refusal. Chitty on Bills, 513, 514, Springfield ed. of 1836.
    In Smith v. Mallett, Lord Ellenborough says, “The plaintiff had notice himself on Monday, and does not give notice to his indorser till Wednesday. If a party has an entire day, he must send off his letter conveying the notice, within post time of that day.” And he held that the plaintiff had been guilty of laches, and the defendant was discharged. 2 Camp. 206, 374.
    “ Where the parties do not live in the same place, notice must be given on the departure of the post, on the day following that on which the party is acquainted with the dishonor.” 4 Phillips on Ev. 26.
    In Mead v. Engs, the supreme court of New York say, that “ notice of nonpayment must generally be given, by an in-dorser to the indorser next before him, by the next post after he has himself received notice of the dishonor, and so on to the drawer, i 5 Oow. Rep. 303.
    It appears, then, from an examination of the foregoing authorities, that the greatest extent to which the courts have gone, in sustaining the sufficiency of notices sent by mail to indorsers, is, that it will be sufficient, if the notice goes by the wail of the day following the protest, or the receipt of notice by the subsequent indorser; and it is believed that no case can be found, in which any respectable court has decided^ either in England or America, that a notice sent by the mail of the day after that succeeding the protest, would be sufficient to charge the indorser, provided a mail left on the day immediately succeeding.
    If these views are correct, and the authorities cited are to be relied on, it would seem to be clear that the first instruction given by the court below, was rightly given.
    The second error asigned by the counsel of the appellant is, 2, that the court below erred in refusing to charge the jury “ that proof that notice of protest was placed in the post office at Natchez, directed to the indorser of said note at Fayette, on the day succeeding the day of said protest, the jury believing, from said evidence, that said indorser lived in said Fayette, is sufficient to charge the indorser, and for them to find for the plaintiff”
    If the first instruction was properly given by the court, this one was properly refused. If, to fix the liability of the indorser, notice should be put in the post-office in time to go out by the mail of the day, next succeeding the protest, it would surely be error to instruct the jury that notice deposited in the office at any time during that day, without reference to the time at which the mail went out, would be sufficient to charge the in-dorser. The' mail might leave at five in the afternoon, and yet, under the instructions asked, a notice deposited in the office at sixj an hour after its departure,-.would be good. This instruction was properly refused.
    The third and last error assigned is, that the court erred in refusing to charge the jury “.that if they believed, from the evidence, that the mail that left Natchez for Fayette, on the day succeeding the day of the protest of said note, was closed at nine o’clock P. M., on the day of protest, it was not the mail of the succeeding day of said protest, and they must find for the plaintiff.” The law requires the notice to be deposited in time to go out by the mail of the day next succeeding, &c.
    The mail which leaves on that day, is surely the mail contemplated by the law, and the hour at which the postmaster, in his discretion, may think proper to close it, cannot certainly work a constructive change in the time of its departure. If a mail in fact leaves a place at eight o’clock in the morning, on Monday, will the circumstance_s of its being closed Sunday night, sustain an allegation that it leaves on that night? And yet, this is in substance, what the court were asked to charge the jury, and what the court, as we conceive, with great propriety refused.
   Per Curiam.

The plaintiff in error, who was also plaintiff below, seeks a reversal of the judgment, on the ground that the court improperly refused to instruct the jury as requested by his counsel on the trial. The defendant, Dangerfield, was sued as the indorser of a promissory note, and the question is whether he was legally notified of the nonpayment. The notary testified that he demanded payment, and protested the note, on the 4th of December, 1888, that being the day of its maturity, and that he put the notice in the post-office at Natchez, directed to Dangerfield, at Fayette, on the morning of the succeeding day, by nine o’clock A. M. The plaintiff proved by a witness that about the time of protest, the mail left Natchez for Fayette, regularly three times a week. That on the night previous to the leaving of the mail coach, the mail was closed at nine o’clock P. M. and the coach left next morning at four o’clock A. M. On this state of evidence, the plaintiff’s counsel asked two instructions to the jury, only one of which we shall notice, as the other was correctly refused. The charge which was improperly refused is the following: — “ That if the jury believe, from the evidence, that the mail that left Natchez for Fayette, on the day after the protest, was closed at nine o’clock P. M. on the day of protest, it was not the mail of the succeeding day after said protest, and they must find for the plaintiff.” The refusal -to give the charge, established in effect this rule; that when the mail that leaves on the day after protest, is closed on the evening of the same day, then it is necessary that notice should be put in the post-office on the day the note was protest-ted. It is necessary that notice should be put in the office on the day after protest, in time to go by the mail of that day, unless it leaves at an unreasonably early hour, but it is never necessary to put the notice in the office on the day of the protest ; and if the mail which leaves on the morning after protest, be closed the night before, then the succeeding mail will be in time. The rule is very explicitly laid down by Chitty, thus, “ where the parties do not reside in or near the place of dishonor, it suffices to forward notice by the general post that, goes out on the day after the refusal, or if there be no post on that day, then on the third day, though thereby the drawer or indorser may not, in fact, receive notice till the third day, or sometimes according to the course of the post, not until the fourth, or even subsequent day.” Chitty on Bills, 514. This question has also been decided at the present term of the court in the same way. Kirkman v. Deminds.

The rule which requires that notice shall be put in the post-office on the day after protest, in time to go by the mail of that day, and that the plaintiff must by proof, bring himself within the rule, is founded on the supposition that there is a post which goes on that day. And it means a mail by which the notice may be conveyed by putting it in the office the day after the protest. The mail, in this instance, if it left on the morning after the protest, was closed at nine o’clock the night before, and if it had not been so closed, it left at four o’clock A. M. which was an unusual business hour, so that it was not within the meaning of the law, the mail by which the notice ought to have been sent. It was not a practicable conveyance for communications put in the office the day after the protest.

The charge which the court gave at the request of the defendant’s counsel was clearly erroneous. The jury must have inferred from it that the notice to bind the indorser, should have been put iñ the office in time for the mail, which closed at nine o’clock P. M. on the day of protest. We repeat that it is not necessary to put notice in the office on the same day the note is protested.

The judgment must be reversed, and cause remanded for a new trial.

Mr. Justice Teacher, having been counsel below, gave no opinion.  