John D. Bowling, Plaintiff in error, v. Jilson P. Harrison, 6 How. 248

Mr. Justice GRIER delivered the opinion of the court.

The first assignment of error in this case is to the instruction given by the court to the jury, — “ That, to charge an in» dorser if he lived in the toWn in which the note was made payable, the notice must be personal, unless he had agreed to receive it elsewhere, or . unless, by custom and usage of the bank at, which the note is payable, the notice of non-payment was left at the post-office.” As the only question on the trial of the cause was the sufficiency of notice left at the post-office at Vicksburg to charge an indorser residing there, and not whether a copy left at his dwelling-house or place of business would be proper, the phrase “ personal notice ” was evidently intended and understood to include the latter in opposition to the former.

This instruction is, therefore, not objected to on the ground of any inaccuracy of expression on that point. But the complaint is* that the rule of law on this subject was erroneously enunciated by the court; in stating the conditions under which a personal service of notice on an indorser is required to be “ rest* deuce in the town where the note was made payable.” It is true, the terms in which the rule of law on that subject is. usually stated differ from those used by the court ' on this occasion. In Williams v.

United States Bank, 2 Peters, 101, it is thus stated by this court: —- “ If the parties reside in the same city or town,. the indorser must be personally noticed of the dishonor of the bill or note, either verbally or in writing, or a written notice must be left at his dwelling-house or place ofbusiness.” •Mr. Justice Story. (Story on.

Bills, <§> 312) states the rule in these words: — “ Where the party entitled to notice and the holder reside in the same, town or city, the general rule is, that the notice should be given to the party entitled to it, either personally, or at his domicile or place of business.” ’ The indorsee or owner of the note in this case resided in Maryland, and the indorser in Vicksburg; and it is contended that, as they are the only parties, and do not reside in the same .place, the rule is inapplicable to the case.

But we are of opinion, that, whether we regard tlje reasons upon which this rule, is founded, or a correct construction of the terms in which it is usually stated, the instruction given by the court below was correct, and not such as to mislead the jury in the application of the law to the circumstances of the case before them. The best evidence of notice is proof of personal service on the party to be affected by it, or by leaving a copy at his dwelling.

Depositing a notice in the post-office affords but presumptive evidence of. its reception, and is permitted to be substituted for the former only where the latter would bé too inconvenient or expensive. Hence, when the convenience of the public post is not needed for the purpose of transmission or conveyance, there is no reason for . its use, or for waiving the more stringent and certain evidence of notice ; and therefore, in the practical application of the rule, the relative position of the person giving the notice and the party receiving it forms the only criterion of- the necessity for relaxing it.

A very large portion, of .the commercial paper used in this country is similar to that which is the subject of the present suit. They are notes made payable at a certain bank.

The last indorsee or owner transmits it to that bank for collection; if funds are not deposited there to meet it when due, it is handed to a notary or agent of the bank, who makes demand and protest, and gives notice of its dishonor to the indorsers; if they live in the same town or city where the bank is situated and the demand made, and “ where the note was payable,”. he serves it personally, or at their residence or place, of business ; if they live at a distance, so that such a service would be inconvenient and expensive, he sends the notice by mail to the nearest post-office, or such other place as may have been design nated by the party.on whom it is to be served.

This, is and. has been the daily practice and construction of the rule in question over the whole country, and the only one consonant with reason. This practical application of the rule is correctly stated by the court in their instruction to the jury as connected with the circumstances of the casé before them, and also within its terms as it is usually stated in the books. The term “holder” is properly applied to the person having possession of the paper and making the demand, whether, in his own right or as agent for another.

The Planters’ Bank of Vicksburg whre the “ holders ” of this note for collection, and were bound to give notice to all the indorsers. (Smedes v. The Utica Bank, 20 Johns. 372.) The notary,-also, who held the note as agent of the owner for the purpose -of making demand and protest, may be prdperly considered. as the “ holder ” within the letter and spirit of .thjs rule, dm a careful examination of the very numerous cases in the books in which the rule under consideration has been enunciated - in the terms above stated, théy will be found not essentially to differ from the present in their circumstances.

In some instances, also, the rule has been , stated in the terms used by the court below. (See Bayley on Bills.) An exception is taken, álso, to tne instruction of the court, — “ That the memorandum attached to the note in this case was not a sufficient agreement to receive notice at the post-office, and to dispense with personal notice on the indorser; and that the custom and usage of the bank;, as proved in this case,, were not sufficient to dispense with personal notice.” The memorandum is in the following words : — “ Third indorser, J. P.

Harrison, lives at Vicksburg.” The only direct evidence of usage was, “ that, for several years prior to the maturity of said note, it had been the usage of the Planters’ Bank of Vicksburg to have notice served personally upon the indorsers'1 resident in Vicksburg, unless there was a memorandum on the note designating a place where notice was to be served; then the notice was left at such place.” This is, in fact, no usage peculiar to Vicksburg, but the general rule of commercial law.

The notary appears' to have mistaken this memorandum for.an agreement to receive notice at the Vicksburg post-office ; and, however willing to excuse himself, he has not ventured to swear directly that there was any known usage to justify this construction, or rather misconstruction, of this memorandum. . The counsel for plaintiff in error complain that the court did not submit it to the jury to say whether an inference might not be drawn, from some equivocal or obscure .expressions of the witness, that there was such a usage.

It is true, the jury are the proper judges of the credibility and weight of testimony, but the court should not instruct them to presume or infer important facts, unless there be t'esti- ’ mony which, if believed, would justify such a conclusion. It is of the utmost importance to commercial transactions, that the rules of law on the subject of notice which is to charge an indorser be stablesand certain, and not suffered to fluctuate and vary with the notions or caprice of banking corporations or village notaries. A usage, to be binding, should be definite, uniform, and well kno'wn.

It should be established by clear • and satisfactory evidence, so that it may be justly presumed that the parties had reféreñce to it in making their contract. Every day’s experience shows, that notaries, in many places, .fall into loose waysnf performing their duties, either through negligence or ignorance; and courts should be cautious how they encourage juries to presume usages and customs contrary to the settled rules of law, in order to sanction the mistakes or misconceptions of careless or incompetent officers. It was as easy to have written the memorandum on this note, “ The indorser, J. P.

Harrison, agrees to receive notice at the Vicksburg post-office,” as to write it .m its present form;- and one can hardly conceive of the possibility of a well-known and established usage, that a written memorandum should be ^construed without any regard to its terms or plain meaning. • Those who affirm the- existence of such a strange usage should be held to strict proof of it; and the court were right in not submitting it to the jury to infer such an improbable and unreasonable custom, by forced or astute' construction of equivocal expressions from a willing witness. Let the judgment be affirmed. Order.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Southern. District of Mississippi, and was argjued by counsel. On consideration whereof, it is now here ordered' and adjudged by this court, that the judgment of the said Circuit Court in this cause be and the same is hereby affirmed, with costs.