BENJAMIN D. HARRIS, PLAINTIFF IN ERROR,

v.

JAMES ROBINSON, DEFENDANT IN ERROR

Mr. Justice WOODBURY delivered the opinion of the majority of the court.

Under the bill of exceptions in this case, the proper practice in some important particulars respecting notices, of. non-payment of promissory notes and bills of exchange' is involved. It appears that the defendant was indorser of such a note, and at the trial the court instructed the jury, that if they believed that the notary made the inquiries stated in his depositions, and sent notice to the-defendant as therein stated, he being ignorant of his true-residence, that the notice was sufficient to charge the defendant,, and that, under the circumstances of the case as proved, it was not necessary to make inquiry of the holder of. the note as to the residence of the indorser ; to which instructions the defendant excepts.

The substance of the inquiries which were made, as shown in the depositions, was, that the note, being “ payable and negotiable at the Planter’s Bank of the State of Tennessee, at Nashville,” tbs notary, after presenting it.and payment being refused, inquired of those “ not unlikely ” to know the residences or nearest post-offices of the indorsers, as they were not known to him. He recollects,as one of whom he inquired,the cashier of the bank, and was-informed by him that'Harris lived, in Madison county, Alabama, but that he did -not know his nearest post-office. The notary made similar inquiries of a Mr¡ Estell, who had resided in Madison county, but was found to be ignorant of the defendant’s nearest post-office ; and the notary adds, that, knowing “ no other source -from whence to derive information as to where to direct ” the notice, he “ accordingly directed” this and others “to Madison county, Alabama, knowing that, from the! general rules of the post-office department, they would be setit to Húntsville, the county seat.”

The. only “ other circumstances, of the case as proved,” to which die judge probably refers, are, that the ñamé of the present plaintiff appears on the back of the note as-the last indorser; that he was then an inhabitant of .Nashville; and that Joseph Bradley, a witness for the defendant, testified, that before the note reached maturity, he, then living at. Huntsville, received notices from Robinson for Harris-, and the-other indorsers, “ requesting him to hand them to the defendant and the . other parties,” in order “ to remind them when said note would fall due,” and that he directed the notice for Harris to his post-office at Cross Roads, in Madison county.,

It is further stated, as a part of the case, “ theré was no evidence to show that the notary knew who was the holder of the bill, or where he resided.”

These being the facts as proved concerning the inquiries and circumstances to which the judge refers, he properly considered it a .question of law,- whether,- upon those facts, if believed by the jury, it was necessary to make inquiry of the holder himself as to the residence of the indorsers, and whether the notice as given Was in all respects sufficient to charge the defendant. Bank of Columbia v. Lawrence, 1 Peters, 583 ; 10 Peters, 581 ; Bryden v. Bryden, 11 Johns. R. 187 ; Hadduck v. Murray, 1 New Hamp. R. 140.

It is to be regretted, that some other facts were not agreed or,re-' ferred to the jury; such as the distance of the residence óf the defendant, as well as of the Cross Roads post-office, from Huntsville; whether he was accustomed to receive letters at the former place ; and who in truth was the holder of . the note at the time-it fell due. But the judge properly submitted.to the jury whatever facts the parties chose to present; and it is usually the best course thus to submit complicated questions of law and fact, accompanying them, however, with due legal instructions as to' the rules which ought to govern. 3 Kent’s Comm. 107. Then the instruQtions can-as .easily be revised as if the case was withdrawn from the jury,’and, what is very desirable, the rules as to commercial paper can be preserved as uniform over the commercial world, and the holders of it have, as they ought to have, a fixed standard^ on a like state of facts, for protecting as well as knowing their rights. 11 Johns. R. 187 ; 1 D. & E. 168 ; 1 New Hamp. R. 140.

The first objection that has been raised under the instruction's or ruling of the court is, that the notice does not appear to have-been given by. the holder of the note. There is no evidence here to indicate any persbn except Robinson or the bank as fee holder •at that time, and probably at the trial it was taken for granted to be one of them, without making any point concerning it to the court or jury. Whichever it -was, there is no pretence but that the notary came into possession of the note from the agent of the holder lawfully, and with a view, as ageñt, to make the demand, and if not paid to give dué notice.. When notes, are left at banks for collection, the notaries may often be ignorant óf the names of the holders, as the notes are handed to them by the cashier. He would as properly do this business when employed by an agent of the holder, as by the holder himself;. and having the note in. either of. these ways, he would be competent in law to' deliver it up if paid, or, if not paid, to give notice of that fact to the indorsers. It has been adjudged, that any agent of the holders may .give notice. Chitty on Bills', 527 ; Bank of Utica v. Smith, 18 Johns. R. 239, in point; Stewart v. Kennett, 2 Camp. R. 177, by Lord Ellenborough, 178 ; 3 Kent’s Comm. 108 ; Stanton et al. v. Blossom et al., 14 Mass. R. 116 ; 7 ibid. 486 ; 9 ibid. 423.

The agent to collect the note may do it. Mead v. Engs, 6 Cowen, 303 ; 3 Bos. & Pull. 599 ; 2 Taunt. 38 ; 15 East, 291 ; 9 East, 347 ; I Camp. R. 349 ; Ogden et al; v. Dobbin et al., 2 Hall’s Rep. 112.

And in 9 Yerger, 255, it was decided that a.notary public is a suitable agent for this purpose* . It was done by a notary of the agent in 2 Hall, 112.

The meaning of the rule that the holder must give notice is, not that he may not do it by an agent, as any other commercial act, but that it shall not be given by some other party on the hill not standing in. the relation in which the holder does, and who has no right to give it and try to make the indorser responsible when the, holder may be willing to waive a resort to him.- Tindal v. Brown, 1 D- & E. 170 ; 7 Yes. jr. 597 ; 1 Esp. R. 333. In this case the notice is express,'that “ the holder looks to yon for payment as indorser” of the bill, and the notary had the note in his possession (11 East, 117 ; 2 Camp; 178) in order to make demand and give notice in behalf of the holder. The only '" maining questions which are material are, whether any farther inquiry, and especially of the holder of the note, ought^ to have been made by the notary, as to the residence of the indorsers, before despatching the notices, and whether the notices sent were sufficient, considering the information he obtained, and his ignorance of the true residence of the indorsers. It was a part of the evidence, that the incjorsers lived remote in another State, and that the notary was.ignorant of the exact places of their abode.

Under such circumstances, he was undoubtedly bound to make inquiries of persons likely to be acquainted with their residences. This he did ; and, among them, of the cashier of the bank, the person most likely to be acquainted with the pláce of abode of those making paper negotiable and payable at the bank, and of another person who had lived in the same county with the indorsers, and not getting entire certainty from either, he sent the notices, addressed as accurately as his information enabled him,.to the county where they lived, and from the capital of which the notices would be likely to be forwarded to the indorsers. ,

This, in most cases, might be sufficient aa to inquiry,' and especially where nobody was .known to reside near who. was able and bound to give fuller and more accurate information on that subject. It would usually satisfy a-jury that thé due diligence had been ^"exercised which, and which only, the law imposes. Chitty on Bills, 525 (8th Amer. ed.); 2 Camp. 461. But it is argued in this case, that the holder probably lived in Nashville,- and could and ought to have-been resorted to on this occasion for such information. Chitty on Bills, 525. This argument is not without force,,'and might be insuperable if the notary knew who the holder was, and did not obtain otherwise all the' intelligence"on this subject which the holder probably possessed. But the evidence not showing that he knew him, did he resort to the holder’s agent, and obtain from him all the information on this point which the holder himself was likely to have possessed ?

Supposing the bank to have been the holder, the cashier, its... agent, was resorted to,.and doubtless' gave all the intelligence in possession of the bank on this subject.

But supposing Robinson to have been the holder, which is the only, other probable presumption on the evidence, and which is contended for by the defendant, and then the cashier was doubtless. his agent-to collect the note,'and received from Robinson all he knew as to the residences of the prior'indorsers, and communicated it to the. notary when applying to him on the subject.. This is not only the general inference from what would he likely to take place on such occasions, but is strengthened in this case from the testimony of Bradley, on the part of the defendant, saying that Robinson; a short time prior, had sent notice to him at Huntsville for these parties, stating when the. note fell due, and that, he rer quested him to hand them to these indorsers. Fr.om this it is obvious that Robinson supposed they resided in Huntsville, or he would have sent the notices to a different place ; and he would not probably have desired a resident of Huntsville to hand'Jhem to the indorsers, unless he believed they lived in the same place.

•There can be little doubt, on this evidence, that the real holder, whether the bank or Robinson, .did give to the cashier all the information the holder possessed on this subject, and , that the cashier communicated the same to the notary, and that the latter would have obtained no more had he. known and resorted , to the holder in person,' and that the cashier, in conforming to this information, by addressing notices to Madison county, supposing that, by the rules of the post-office department, they would be sent to Huntsville, the county town, did all which duty required of him.

Beside the light flung on this subject, and favorable’ to this conclusion, by some of the general positions in the authorities cited at the bar, there are several precedents whjch bear more directly on a state of fac.ts such as exists in this case, and which deserve special notice, as they fortify the correctness of the. views we have presented.

In Stewart v. Eden, 2 Caines, 121, the court ruled, that the holder was bound, tp inquire no farther than a reaspriahje and prudent man-should, and said, “We do npt exact from him every possible exertion,” of inquiry. Only “ ordinary diligence ” is required in inquiring. ' Catskill Bank v. Stall, 15 Wend. 367. Only “ reasonable diligence.” Fisher v. Evans, 5 Binney, 543. So in Chap man v. Lipscombe, 1 Johns. R, 294, where a bill was drawn and dated in-Pfew York city, on’ persons there, and accepted, but' pro-, tested afterwards for non-payméht, and it did not appear that the holder knew where the drawers lived, but sent two notices to them, one addressed to New York and one to Norfolk, it was held that they were good, though the drawer in fact lived in Petersburg.

In that case, inquiry, was made at the banks and elsewhere, and notice was sent in conformity with the information received ; but he did not inquire of the acceptors, who lived in New York, and could have told him correctly where the drawers lived.

In 3 Kent’s Comm. 107, it is laid down, that notice need not always, be sent to the post-office nearest to the indprser’s residence. It suffices, if sent to the nearest which can be ascertained on due inquiry. And in 1 Peters, 578, and 2 Peters, 551, whére a notice like this was addressed ..to the indorser, as belonging to the county in which he lived, the same rule is recognized. It is true, that there the party in fact resided near the county seat, .or received some of his letters there, about which there is no particular proof here ; but it is said to be proper to address,a notice-in that way, “ if after due inquiry it is the only description within reach of the peíson sending the notice.”

It-is’ enough to send the notices to the place where the information received reasonably requires him -to send them. 2 Car. & Payne, 300 ; 1 Barn. & Cressw. 243 ; Bank of Utica v. Davidson, 5 Wend. 587. If the place it reaches is the wrong one, he is then not in fault. 5 Yerger, 67. All his duty in this case is; to use “ ordinary diligence ” on the subject, and not to insure at all events that the notice actually reaches the indorser. 1 Peters. 582 ; 10 ibid. 581.

In Barr et al. v. Marsh, 9 Yerger, 255, it was held, that the holder was not bound or-presumed to know where the indorser lived. But. it was enough if the agent of the indorsee or holder made due inquiry, and directed the. notices to the places -indicated by the iriformation, though wrong. It was the best that could be done under the circumstances. Nichol v. Bate, 7 Yerger, 307 ; Dunlap v. Thompson .et al., 5 Yerger, 67. Where so many post-offices exi’stj the residences of parties change so often, and people live so remote from* each other., as in this country, it would clog’ the circulation of negotiable paper if the holder or his agent was bound to know every alteration in the residence of indorsers. The inquiries were at the bank, and of other persons, in the case of Barr v. Marsh, much as in this instance.

In-Sturges et al. v. Derrick, Wightwick Exch. Cas. 77, an inquiry was. made of the son of an indorser as to his residence, and he did not know if, and the court'held, that “ sufficient diligence had been used.” And in Stuckert v. Anderson, 3 Wharton, 116, the case itself on examination shows that an inquiry of the officers of the bank where the note was discounted is deemed sufficient, if there be no others near who are likely to know more as to the residence of the indorsers.

Some cases, it is true, have been more stringent, such as 13 Johns. It. 434, and 3 Camp. R. 262 ; but they do not contradict our conclusions, as in the first one the notice was sent to a wrong place quite remote, and the inquiry is said to have been limited ; while in the last, no inquiry was made except at the “ house ” where the bill was payable.. Most of the cases referred to on this point, of due diligence in making inquiry, are rather cases as to due diligence in respect to the time when the notices are sent.

Some of those, as bearing on this, allow a very liberal time to make-inquiries where the residence is remote (2 Barn. & Cressw. 246 ; 8 ibid. 393 ; .2 Dowl. & Ryl. 385 ;, 2 Mood. & Ry. 359) ; and only require the notice to be ‘sent as soon as information is obtained!under proper exertion (1 Barn. & Cressw. 245 ; Gow’s R. 81 ; 2 Camp. R. 462). And some go so far as to excuse giving notice at all, if the place of residence at the time is unfixed (4 Camp. 285), or cannot be ascertained (10 Peters, 580, and 9 Wheat. 591, before quoted). In the case now under consideration, then, the conclusion seems well sustained, that reasonable inquiries were made as to the residences of the indorsers, and notices promptly despatched, by a proper agent, in conformity with the information received. Whether the notices were actually received or not, and whether, if received, it was not as soon as if they had been directed to the Cross Roads post-office, does not appear, nor is it-material, as the circumstances before mentioned show due diligence, and thus make out a sufficient case, whether the notices ever-reached the indorsers-or not. Let the judgment below he affirmed. .

Mr. Justice McLEAN.

I dissent from the opinion of the court in this case with regret.

The Circuit Court instructed the jury, “that if they believed that the notary made the inquiries stated in his deposition, and sent notice to the defendant, as therein stated, he being ignorant of his place of residence, that the notice was sufficient to.charge the defendant ; -and that under the circumstances of the case,, as proved, it was not necessary to make inquiry of the holder of the note as to the residence of the indorser.”

The note was given by John P .'Burks & Co. to Matth. Burks,for. sixteen hundred dollars, in eight months from its date, payable and negotiable at the Planters’ Bank of the State of Tennessee, at- ’ Nashville. It was indorsed by Matth. Burks, Beniamin D. Harris, the defendant below, and also by J. Robinson, the plaintiff. The note does not anuear to have been negotiated at the-bank. A. Kingsley, the notary,-made a demand of-'payment at the bank when the note become due, but it does not appear who delivered it to him. Notices of non-payment were directed by the notary to Matth. Burks and Benjamin D. Harris, the two first indorsers, to Madison county, Alabama.

. He did not know where these indorsers, resided, but Hobson, the cashier of the bank, to whom he applied for information as to their place of residence, informed him that they lived in the above county and State. Similar information was communicated to him by Joseph Estell, but neither of these individuals knew die post-offices nearest to the respective indorsers.

Bradley, a .witness, stated, that, previous to the maturity of the note, Robinson directed to him, at Huntsville, Madison county, Alabama, notices to all the parties to the note, requesting him to hand them to Harris and the other parties, stating the time when it would become due. And that witness directed the notices to the respective post-offices of the parties. To Harris, he directed the notice to tifie post-office at “ Cross Roads,” Madison county, Alabama.

' On this state of facts, the court instructed the jury,. “ that the notary, was not bound to inquire of the holder as to the residence of the'indorsers.”

The notary did not act for himself, but as agent of the holder ; and it was prove,d that Robinson, who appears to. have been the holder, resided in the same town with the notary, and knew the proper direction for the notices. Now .the holder is bound to give the, notice himself, or through his agent; and can he evade the law by .employing an agent who is ignorant of the residence of the indorser,- which is known to himself. He knows where the indorser resides ; is he not then bound to direct the notice as the law requires ? It is a new principle in the law of agency, that the knowledge of the principal shall not affect him, provided he can employ an agent who has no knowledge on the subject. The holder is bound to communicate to the notary all. the knowledge he has, so that -the notice may be properly directed. And if this be not done, and the notice is improperly, directed, the holder loses his recourse against, the indorser. This seems to me to be clear of all doubt.

In the case of Preston v. Daysson et al., 7 Louisiana Rep. 7, it was held, “ that the' holder, of a bill or note ought, not to avail him-self of the ignorance of the notary.as to the residence of the indorsers in giving'them notice of protest; if he knows, he must disclose their residence, or it seems that his neglect will discharge the indorsers.” And this is the case now .before the court.

There was no proof that the notary knew where Robinson, the plaintiff below, resided ; but it i^-proved that he lived in the same town, his name being on the-note, and from the fact that the notary gave no notice to.him, as indorser, it is clear that he knew he was the holder. In Hill v. Varrell, 3 Greenl. 233, it.was held, “ that where the residence of the drawer of a bill is unknown to the holder, he ought to inquire of the other parties to the bill i| their residence is known to him.” And in Hartford Bank v. Stedman, 3 Conn, Rep. 489, “ where the holder, who was ignorant of the indorser’s residence, sent the notice to A., who was acquainted with it, requesting him to add to the direction the indorser’s place of residence, it was, held sufficient.”

“ If the holder of a bill uses reasonable diligence to discover the residence of an indorser, notice given as soon as this is discovered is sufficient.” Preston v. Daysson et al., 7 Louisiana Rep. 7. In Beveridge v. Burgis, 3 Camp. 262, Lord Ellenborough said, — “ Ignorance of the indorser’s residence may excuse the want of due notice, but the party must show that he has used reasonable diligence to find it out. Has he done so here ? How should it» be expected that1 the requisite information should be obtained where the. bill was-.payable ? Inquiries might have been made of the other persons whose names appeared upon the bill,” &c. In Bateman v. Joseph, 12 East, 433, “in an action by an indorsee against the payees and first indorser of a bill, it appeared the plaintiff received notice of its dishonor on the 30th of. September, in time to give notice to the defendant on that day ; he gave no notice, however, until thé 4th of October ; to excuse which, his clerk, proved that the plaintiff did not know the defendant’s residence until that day. Lord Ellenborough left it to the jtoy, whether the plaintiff had used due diligence to find the defendant’s residence.”

In Story on Promissory Notes, 370, note 1, it is laid down, — ' “ That merely inquiring at the house where a bill is payable is not due diligence for finding out an indorser. Inquiry should be made of some of the other parties to the bill or note, and of persons of the same name.” And again, in page 368, note, — “ To excuse the not giving regular notice of the dishonor of a bill to. an indorser, it is not enough to show that the holder, being ignorant of his residence, made inquiries upon the subject at the place where the bill was payable ; he should have inquired of every other party to the bill.”

There is no pretence that the bank was the holder of this bill. For the evidence showed that the notary did inquire of the cashier of the bank where the indorsers resided. But the court charged, that, under the circumstances, it was not necessary for the notary “ to make inquiry of the holder of the note as to the residence of the iridorse.r”; the court, therefore, referred to Robinson as the holder, and jiot to the bank. This charge is wholly inconsistent with the supposition that the note was discounted by the bank, for then it would have been the holder, and the proper inquiry, as to the.residence of the indorsers, was made of it. The note bears no marks of its having been discounted. That Robin son was the holder appears from the notice he gave to the parties when the note would become due, from the fact that he was not notified as an indorser, and also that he commenced suit as the holder, after the dishonor of the note.

The turning point in the case is, whether the holder, in failing to give the proper direction to the notices by his agent, the notary, is not answerable for the knowledge he possessed of the residences of the indorsers, which he failed to 'communicate to the notary. I care not whether or not Robinson knew the post-offices of the indorsers. He had communicated with them through Bradley, the witness., and if the notices had been thus sent, the law required nothing more.

It will be observed, that the cases cited show the duty of the holder as to giving notice. And it is believed no case has been reportéd, except the one cited from Louisiana Reports, where it has been supposed that a principal, having knowledge of the residence of the indorsers could excuse himself from giving notice to them by a want of such knowledge in his agent. That the notary knew Robinson was the holder is conclusively shown, as before remarked, by not treating him as an indorser. His name was upon the note as an ir iorser, and he must have understood the purpose for which the indorsement by him was made.

All the authorities say the holder is bound to use reasonable diligence to ascertain the residence of the indorser; and. when he attains that knowledge, is he not governed by it ? And if so, is he not equally bound to cdmmunicate it to his agent whom he may employ to .give the notice ? A denial of this principle will overthrow the doctrine of notice, as éstablished for more than half a century.

I think the judgment should be reversed, and the cause remanded for a venire de novo, in the Circuit Court.

Mr. Justice McKINLEY dissented also.