
    Fleming & Al. v. Hill.
    The notary must state facts and show what he has done to find out the residence of an indorser and give notice of protest; and not merely assert in general terms that he made diligent inquiry, and was unable to ascertain it. — 12 L. 465; 1E. 451; 11 E. 213.
    So when the notary’s clerk testified that “he made diligent inquiry and endeavored to find out the residence of the indorser,” but in vain, it was held to be insufficient. The particular facts must be shown to enable the court to determine if proper diligence has been used.
    Appeal from the commercial court of New Orleans.
    This is an action against the indorser of three checks or drafts drawn at Vicksburg in Mississippi, on the cashier of the Girard Bank in Philadelphia, and “ acceptance waived.” They were indorsed by the payee and the present defendant; and protested at maturity for non-payment. The usual allegation is made of protest and due notice thereof given to the indorser.
    The defendant pleaded a general denial; and averred that he was not [2] liable as indorser for want of legal and due notice.
    Upon these pleadings and issues the case was tried.
    It appeared in evidence that Hill, at the time these checks were drawn, in 1838, was a resident of Nashville, hut had advertised his intention to remove his residence to New Orleans, where in fact he has almost ever since resided and carried on business as a partner in a commercial firm. He never resided at Vicksburg. The drafts or checks matured and were protested in Philadelphia. The notary and his clerk both state in substance that they made diligent inquiry to find out the residence of the defendant, but could get no information about it. He then sent the notices to Vicksburg, addressed to the drawers of the checks. There is no evidence that the defendant had any notice of protest. It was shown that he was a conspicuous dealer in exchange and in merchandise in Philadelphia, and generally known to the mercantile community thero; and that information might easily have been obtained, of the place of his residence.
    There was judgment for the defendant and the plaintiffs appealed.
    
      O. M. Jones, for the plaintiffs and appellants,
    insisted that the evidence of the notary and his clerk showed that due diligence was used to find out the residence of the defendant, but in vain. This was all the law required. It was impossible to address notice to him at his residence, and the law does not exact impossibilities; the indorser was therefore to be considered as bound absolutely, and must remain bound without notice. The judgment should therefore be reversed and one given for the plaintiffs.
    
      L. Peirce, for the defendant,
    said thero was no regular proof or evidence of the signatures of the drawer, or of the first indorser of the checks or drafts, and no recovery could be had without proof of these ; and the plaintiffs were not therefore shown to be the legal owners of the drafts.
    
       2. The defendant, as appears from the record, had no notice whatever of the dishonor of the drafts, although a conspicuous merchant and well and .generally known where the drafts were protested.
    3. The evidence shows that the notary’s clerk did not use any diligence or he might easily have ascertained the defendant’s residence from the merchants and others of Philadelphia. The judgment should therefore be affirmed.
   Maetih, J.

This is an action against the defendant as indorser of three drafts or cheeks drawn by the cashier of the Commercial and Railroad Bank of Vicksburg, the 18th May, 1838, payable to the order of Challes Remington, the 1st May, 1839, and addressed to the cashier of the Girard Bank of Philadelphia; “acceptance waived.” They were indorsed by the payee and the present defendant, and protested on the 4'th May, 1839, at maturity, for nonpayment.

The defendant pleaded the general issue, and specially denied that he was liable to pay said drafts for want of legal notice. There was judgment for the defendant, and the plaintiffs appealed.

The sole question which this ease presents relates to the regularity of notice given to the indorser of several drafts, of their dishonor. The notices were sent in a letter addressed to him at Vicksburg, the place at which the drafts were drawn. It does not appear that he ever resided there. The testimony shows that he formerly resided in Nashville, Tennessee, but that in May, 1838, he gave public notice of his intention to remove Ms residence to New Orleans; and that he has been in JVew Orleans for the last two years. The notary’s clerk testifies that, he “ made inquiry as to the place of residence of the defendant but was unable to obtain any information about it, although he made diligent inquiries and endeavored to find out his resi- [4] dence.” The defendant has introduced several witnesses who depose that he is well known in the city of Philadelphia where he has considerable dealings with several large houses; that he deals largely in exchange, and they believe that on application to any of the banks of that city, the place of his residence might have been easily ascertained.

The judge who tried this case, was of opinion that sufficient diligence does not appear to have been used; that it does not suffice to assert it in general terms; and that some particular facts must be shown to enable the court to decide, whether there has been proper diligence; otherwise the case must be dicided on the mere opinion of the witnesses. It does not appear to us that the judge of the commercial court erred.

It is therefore ordered, adjudged and decreed, that the judgment of the commercial court be affirmed with costs.  