
    Pierre Chouteau, Jr. vs. Daniel Webster.
    An inhabitant of Boston indorsed a promissory note that was made payable at a bank in the city of .New York, and which the maker failed to pay at maturity: When the note fell due, the indorser was at Washington, attending to his duties, at a session of congress, as a senator from Massachusetts } and he had, at all times, an agent in Boston, who had charge of his business in his absence $ but the holder of the note had no notice that the indorser had such agent, nor did the indorser request that no tice should be sent to him at Boston: Notice of non-payment by the maker was seasonably put into the post office at New York, directed to the indorser at Washington, where letters, addressed by mail to members of the senate, during the session of congress, are taken from the post office, by officers of the senate charged with that duty, and delivered to the members in their places, when the senate is actually in session, and on other days are delivered, by those officers, at the members' lodgings. Heldf that the notice was sufficient to charge the indorser.
    Assumpsit by the indorsee against the indorser of two promissory notes, dated at the city of New York, March 24th 1837, and payable at the Merchants Bank in that city, on the 1 st of October 1837. The case came before the court on the following agreed statement: On the last day of grace, viz. on the 4th of October 1837, about 3 o’clock, P. M., the notes were delivered by the holders thereof to T. W. Christie, a notary public residing in the city of New York, who straight way presented each of them to the paying teller of said bank, while the bank was open for the transaction of business, and demanded payment of the same of the said teller, who refused to pay them, or either of them, for want of funds of the makers. The notes were duly protested, by said notary, for non-payment, and written notices, signed by him, of the protest of each of said notes, and that the holders looked to the indorsers for payment thereof, were by said notary, by direction of the holders, put into the post office in said city, on the morning of the 5th of said October. The notices to the defendant, as first indorser of each of said notes, were directed to him at Washington, in the District of Columbia. The defendant’s general domicil and place of business was in Boston, where he at all times had an agent, who had the charge and management of his business affairs, in his absence; but from the 7th of September 1837, to the 16th of October following, the defendant was at said Washington, attending to his duties as a senator in congress from this Commonwealth, during the extra session held that year.
    Letters from New York usually reach Washington in about 48 hours, in the regular course of the mail. Such letters, as are addressed by mail to members of the senate, during the session of congress, are taken from the Washington post office, by officers of the senate, appointed for that purpose or charged with the duty, and delivered to the members in their places, when the senate is actually in session, and on other days are delivered, by those officers, to members at their lodgings; and such was the usual course with regard to letters addressed by mail to the defendant, during the extra session of September and October 1837.
    The making and indorsement of the said notes, and the consideration thereof, are admitted. All matters of fact, as well as of law, involved in the case, are submitted to the decision of the court, who may make such inferences from the facts stated, as a jury would be authorized to make. If any facts are contained in this statement, which it would not be competent for either party, on a trial before a jury, to prove or put into the case, upon the other party’s objecting thereto, such facts shall be stricken out by the court, and neither party shall be in any way prejudiced by their having been inserted herein. And if, in the opinion of the court, it shall be necessary to the rights of either party, the case may be opened for the introduction of evidence touching facts that may be deemed material; whether they are embraced in this statement, or not. But if no further evidence or facts shall be introduced, and the court are of opinion that the facts stated would justify a jury in finding a verdict for the plaintiff, a default is to be entered, and judgment rendered thereon for the plaintiff; otherwise, the plaintiff is to become nonsuit.
    
      W. J. Hubbard & Watts, for the plaintiff.
    The notice was properly directed to the defendant at Washington, where he then resided, and where the object of notice, viz. to enable him to obtain security from other parties to the notes, would be best effected. As he usually received letters through the post office at Washington, the notice, for that reason alone, was proper and sufficient. Reid v. Payne, 16 Johns. 218. Rank of Columbia v. Laivrence, 1 Pet. 578. U. S. Rank v. Carneal, 2 Pet. 553. Ireland v. Kip, 11 Johns. 231. Remer v. Downer, 23 Wend. 620. Bank of Utica v. Davidson, 5 Wend. 587. Bank of Geneva v. Howlett, 4 Wend. 328. Bank of Utica v. Bender, 21 Wend. 643. Lowery v. Scott, 24 Wend. 358. Hodges v. Galt, 8 Pick. 251. Chit, on Bills, (7th ed.) 222. Ransom v. Mack, 2 Hill’s (N. Y.) Rep. 587. Walpole v. Hopkinton, 4 Pick. 358.
    The notice was also seasonably sent; being put into the post office the next morning after payment was refused. Bayley on Bills, (2d Amer. ed.) 262. Whitwell v. Johnson, 17 Mass. 449 And the presumption of law is, that the defendant received the notice. Greenl. on Ev. ■§> 40. Mwhn v. Baldwin, 6 Mass. 316. Shed v. Brett, 1 Pick. 401. Dana v. Kemble, 19 Pick. 112.
    
      J. P. Rogers & Healy, for the defendant.
    The notice should have been sent to Boston, where the defendant had his domicil and an agent to attend to his business, and where notice would have arrived one day earlier than at Washington. The defendant therefore lost time, by the sending of notice to Washington. But a member of congress, or of a state legislature, while attending to his official duty at the seat of government, does not change his domicil, and notice to him, of the dishonor of a note that he may have indorsed, cannot legally be addressed to him there, unless he has so directed or consented ; because, in most cases, if not in all, the object of notice would not be effected. And there is no precedent which sustains the plaintiff in the course which he adopted.
    The facts stated do not prove that notice was received by the defendant; and when a notice is wrongly directed, the court will not inquire whether it was in fact received, or received as soon as if it had been rightly directed. Ireland v. Kip, 10 Johns. 490, and 11 Johns. 231. Flack v. Green, 3 Gill & Johns. 474. Dunlap v. 'Thompson, 5 Yerg. 67. U. S. Bank v. Corcoran, 2 Pet. 121. Suppose the letter, containing the notice, had contained money; would the court direct a jury that the facts agreed in this case proved that it was received ? Or if it were proved that the money was not received, would that prove that the letter was not mailed at New York ? In pauper cases, it is settled that notice put into the post office is not sufficient, unless it is also proved that it was received. The cases on bills and notes, so far as they have yet gone, are exceptions to the general rule respecting post office notices. In Ireland v. Kip, 11 Johns. 232, it was held that delivery of notice at the post office, “ unaccompanied with proof that it was actually delivered at the house ” of the indorser, was not legal notice. See also 3 Met. 496. 2 Pet. 551. 3 Gill & Johns. 474.
    It does not appear that reasonable diligence was used to ascertain the defendant’s domicil and place of business. The notary sent the notice, at the suggestion of the holders; and tnere is no evidence that they made any inquiry on this subject. Beveridge v, Burgis, 3 Campb. 262. Bank of Utica v. De 
      
      Mott, 13 Johns. 432. Hodges v. Galt, 8 Pick. 251. Cuyler v Nellis, 4 Wend. 398.'
   Shaw, C. J.

It is admitted that these notes were duly made and indorsed; that they were seasonably presented for payment, at the bank in New York, where by their terms they were payable, and payment refused; that notice thereof, in due form, was seasonably prepared by the proper officer, and put into the post office; and the only question is, whether, under the circumstances stated, it was rightly addressed to the defendant, at Washington

The mercantile law, regulating the liabilities of parties to notes and bills, does not require proof of actual notice of dishonor to an indorser, in order to charge him; but reasonable care and diligence in giving such notice.

The inference is very strong from the facts stated, as strong, perhaps, as mere circumstantial evidence could make it, that the notice actually reached the defendant at Washington. He was a senator of the United States; the senate was then in session; and such precautions were taken, in regard to letters addressed to senators, as to ensure their delivery with prompt ness and certainty.

The ground relied upon, to show that such notice was not sufficient, is, that the defendant’s general domicil and place of business was in the city of Boston, where he had, at all times, an agent, who had the charge and management of his affairs. But it does not appear that he had made any request to have notices sent to him at Boston, or that any actual or constructive notice was had by the holder of these notes, that he had an agent at Boston. This fact, therefore, must be considered immaterial. The defendant, though his domicil was at Boston, was actually resident at Washington, in discharge of his public duties as a senator, at a session of congress, called by public proclamation, and continued until after the time at which this notice was sent; so that the place, where he might be presumed to be actually residing, was fixed and well known by the nature of these duties. Under these circumstances, the court are of opinion, that notice to the defendant, by mail, addressed to him at Washington, was good and sufficient notice of the dishonor of these notes.

This decision is founded on the circumstances of the particular case, and may be varied by other facts. It is not like the case of a merchant stopping, for a day or two, at a hotel or watering place, or on a journey of business or pleasure; though we are not prepared to say that actual personal notice to an mdorser, at such place, would not be sufficient; but of this we give no opinion.

Nor is it like the case of a banker or merchant, having extensive dealings in negotiable securities, having an open, fixed, and well-known establishment and place of business, with agents having the custody of his funds, the keeping of his accounts, and generally charged with the transaction of his business in his absence. Such circumstances might, perhaps, amount to constructive notice to the holders of such securities, that such was the indorser’s place of business, and of his request and direction that notice should be addressed to him there. It might, in this view, be sufficient to show, that notice so given would be good and sufficient, though it would still be open to the question, whether other notice would not be equally good.

The fact of domicil is one circumstance only, in determining where notice shall be given. A man may retain his domicil at a place, though in fact personally absent therefrom, and absent with his family for years. Such is the condition of a president of the United States, or cabinet minister, residing at Washington, or of an ambassador in a foreign country. His domicil is not thereby changed; but yet we cannot doubt, that notice to such public officer, at the place of his actual residence, to which, for the time being, he is fixed by his public duty, would be good notice. Yet the'only distinction between a president of the United States and a senator is, that the residence of the former at Washington is somewhat more protracted, and uninterrupted by the intervals between sessions of congress, than that of the latter.

We place no great reliance, in this decision, upon another rule, which seems to be well established, and to embrace the Dresent case; namely, that notice at a post office, where the party usually receives his letters, though not the place of his domicil, is good notice. Reid v. Payne, 16 Johns. 218. It is conformable to the more general rule, sustained by many authorities, that notice shall be so given, and at such place, that it will be most likely to reach the indorser promptly Bank of Columbia v. Lawrence, 1 Pet. 578. U. S. Bank v Carneal, 2 Pet. 553.

Judgment for the plaintiff.  