Patrick v. Beazley, 6 Howard 609

Mr. Justice Trotter, delivered the opinion of the court.

We take it to be a well settled and universal rule, that, where the indorser resides in the same town or place with the holder of a dishonored note or bill, notice -of protest must be personal, if, on diligent inquiry, the indorser is to be found; or, if he is absent, it may be left at his dwelling or place of business; and that, in suph case, notice left at the post office is not sufficient; that when the party, entitled to notice, resides in a different place, .notice may be then sent through the post office to the post town or office which may be nearest his residence.

This is- recognized to be the doctrine in regard to notice, in all the books. The only exception which appears to have been at any time allowed, is the use of the convenience of the penny post in large cities, when the indorser lives in a part of the city remote from that ’ of the holder, or in its neighborhood. It was sanctioned by the court of King’s Bench in England, in the case of Scott and others v. Lifford, 1 Camp. 249. In that case the court say, that if the indorser resided either in the city of London or its near neighborhood, notice by this mode might be sufficient.

But the court in New York refused to allow a transmission by the letter carrier in the city of New York to be, sufficient; and when the indorser resided more than three miles from the City Hall, held that he was entitled to personal notice, although it was proved that he had given instructions to the letter carrier -to leave all letters directed to him at the post office at a particular house in Frankfort street, at which he called or sent every day for letters. The notice was put in the post office, and under this proof it was insisted that it was sufficient. But the court held otherwisé. Ireland v. Kip, 11 J.

R. 231. The courts have manifested a constant jealousy of admitting relaxations of the rule which requires personal service of notice, and have never permitted it, except in cases of strong necessity for the convenience and benefit of commerce. But this necessity, under which transmissions by mail arfe allowed, can never bfe'said to exist when the parties reside in the same town or place, and therefore, when that is the case, the courts will not dispense with personal notice.

But it is urged that this principle does not apply where the indorser resides beyond the limits of the town, when notice through the post office is sufficient, if it be the post office nearest his residence. This argument assumes a. distinction which is not taken in the case which has just been noticed, of, Scott and others v. Lifford, when the allowance of the uSe of the penny post was not made to depend upon the question whether the indorser resided in the city of London or its near neighborhood.

And the effect of that decision is manifestly at war with any such discrimination; for it puts the residence in the near neighborhood of the city upon the same ground with a residence in the city. To permit this distinction would necessarily expose parties entitled to notice to an uncertain and very often to a capricious and arbitrary rule, extremely embarrassing to the courts in making an application of it, and therefore injurious to commercial pursuits.

It is often very difficult to determine the precise limits of towns, when they have not been incorporated; and, in thqt case, different opinions may exist as to where they cease and the country begins.

In cases of cities or incorporated towns a surer criterion is fixed by the boundary line, and yet a moment’s reflection must satisfy all that the rule would not be the less exposed to embarrassment, if not to ridicule; for it may so happen, and in large commercial towns such will no doubt often be the case, that a party living within the admitted environs of the place, may yet be beyond the actual boundary line of the corporation, and so lose a privilege to which he would be otherwise clearly entitled. .And, as was very properly said by the counsel for the defendant, it may turn out that two persons may be subject to a different law, who yet reside within twenty steps of each other, the one within and the other beyond the line.

And again: one who resides two miles from the holder may claim personal notice, whilst another, living perhaps within fifty yards of him, must take the chances of the post office. Such a discrimination appears to us to be without reason or foundation. The obvious meaning of the courts when they require personal notice, if the indorser lives in the same town or place, is, the same immediate neighborhood, whether it be in town or 'the country..

It was evidently, so understood by the judges in New York, in Blip’s case, and has been so considered by the supreme court in Tennessee, in two cases exactly like the one at bar. Mart. & Ver. 183; 1 Yer. 166. The court of appeals in Kentucky have sustained the same views. In the case of the Bank v. Butler, 3 Lit. 500, it appeared that the indorser lived four or five miles from the town of Russel-ville, where the holder of the note resided, and that the notice was directed to him at that town, and put in that post office. They held this to be insufficient, although if was the post office nearest to his residence.

They say the law allows a transmission by mail, only in cases when the indorser resides in another place, between which and the post office where the notice is mailed there, is a regular post road. The supreme court of Louisiana have, in repeated and' numerous cases, settled the question in the same way. In Clay v. Oakley, 5 Martin, N. S. 139, the notice waá left in the post office at Alexandria, directed to the indorser at that place; and the court held it to be insufficient, saying, it made no difference whether he resided in or out of the town. •• In the case of the Bank v.

Rowell, 6 ibid. 508, the indorser lived three miles from the town of Baton Rouge, at which post office the notice was deposited, and it was determined not to be sufficient, although it was proven that she was in the habit of sending a servant regularly to that office for letters, and that they seldom remained in the office longer than forty-eight hours.

The same was ruled in the case in 7 Martin, 492. ' ' It is thus shown that in three of the states this precise question has been settled by repeated adjudications, and that in the state of New York the principle established by her courts is in' exact harmony with that of the others. Against this weight of precedent, the case of the Bank of Columbia v. Lawrence, 1 Pet. S. C.

Rep. 584, has been,produced, and its authority relied on. -It must be admitted that the court has there decided the question differently; a result to be attributed, as we conceive, to a misapplication of the rule which permits transmissions of notice through the mails. It is remarkable that, the opinion of the court recognizes the identical principles throughout which are laid' down by the .judges in the cases just noticed in Louisiana, Kentucky and -Tennessee; and so' fully does the judge who delivered it concur with the New.

York courts, that he refers to one of the cases decided by them for the authority upon which he relies. . It must have been with the viexv to fortify .the general rule, stated by the judge, that he refers to the case of Reid v. Payne, 16 J. R. 218, and not to sanction its application to the case before him, for there it is an authority against him. In that case the note was payable at Albány, and was^there protested for non-payment; and notice was placed in the post office there to be mailed for Greenbush, a post office at another place.

The only question for the court was, whether notice sent to Greenbush was sufficient, as it appeared from the proof that the indorser resided at Schodac'k, where there was also a post office. But, it being proved that, he was in the habit of receiving his letters at Greenbush, the notice was held sufficient. “No cases,” says the judge, in deciding the case of the Bank v. Lawrence, “have fallen under the notice of the court which have suggested any limits to the distance .from the post office within which a party must reside in order to make the service of the notice in this manner good.

But cases have occurred where the distance was much greater than in the one now before the court,.and the notice held sufficient.” And he then refers to the case of Reid v. Payne, in New York. The facts in that case, however, were wholly different, and the defendant resided in a different town or place; ánd it was to that state of case that the court in New York applied the rule, that notice may be sent by the mail to the post office nearest to the residence of the indorser!

And hence judge Thompson concludes, that, as Georgetown, whei’e the notice was deposited, was nearest to the residence of the defendant, the notice was sufficient, though he resided within two or three miles of that place. The court must have been influenced by the circumstance that the general usage of the bank had been to give notice in that mode, which was known to the defendant; and we must conclude that, had the cases which had been decided in Kentucky, Louisiana and Tennessee fallen under his notice and attention, he must have come to a different conclusion. The case of Stamps v.

Brown, Walker’s Reports, 526, appears to us to have been decided under a clear misapprehension of the doctrine in the case of Shed v. Britt, 1 Pick. Rep. 411. That is the case which is referred to by the judge who expressed the opinion of the court, to support his conclusions.

Judge Nicholson remarks, that “though no good reason can be given why an indorser residing without the limits of the town or city should not be entitled to as strict notice as one residing in the town, yet for the sake of convenience a line must be drawn, beyond which, notice by mail is sufficient, and consequently concludes that a letter deposited in the post office nearest his residence is sufficient, and refers to the above case in Pick. The judge evidently alluded by this remark to the line of the corporation as being the criterion of the question.

But the court in Massachusetts say, there cannot be one law for an indorser who may reside just over the line, and another for one who may live only a mile on this side. And they add, that whenever the indorser resides in a town in which there is a post office, different from that in which the note is dishonored, it is proper to send notice by the mail.” The only question raised in this case was, whether notice in any case sent by mail is more than prima facie evidence of notice. And the court held it to be conclusive.

The notice was mailed, and directed to the defendant at Bridge-water, a post town entirely different from that in which the holder resided.. We feel constrained, therefore, to differ from the court in its conclusions in the case of Stamps v. Brown. We do not deem it necessary to notice the other questions which are raised in the assignment of errors, qs the judgment must be reversed for the error which has just been considered. Judgment reversed, and a venire de novo awarded.