Opinion
Spring Sessions, 1842
Chandler, for plaintiff.
J. A. Bayard, for defendant.
ACTION on a promissory note, dated the 29th of March, 1841, at six months for $200; drawn by Harris 'Wells, in favor of John H. Barr, or order, and by him indorsed to plaintiff.
William M'Caulley, Esq., a notary public, proved a demand on H. Wells the drawer, and protest for non-payment, and notice the same day put in the post-office in Wilmington directed to the defendant the indorser, who resides also in Wilmington.
Mr. Bayard moved a nonsuit, on the ground that the indorser was discharged for want of proper notice. Where the indorser resides in the same town, he is entitled to personal notice served on him. Notice through the post-office is not sufficient, unless there be a penny post, and it be also shown that the defendant was in the habit of receiving letters through the penny-post. ( Wheat. Selw. 356; 10 Johns. Rep. 490; 11 ib. 231.)
As the parties in this case all resided in the same place, to wit: in the city of Wilmington, the indorser ought to have been personally noticed of the dishonor of the note, either verbally or in writing, or a written notice ought to have been left at his dwelling house or place of business. Either mode of notice is sufficient, but one or the other must be observed, unless it is prevented by the act of the party entitled to the notice. In this case, the notice by a letter dropped in the post office at Wilmington, is not sufficient. The plaintiff, therefore, must be nonsuited. (2 Pet. Rep. 101, Williams vs. Bank U. States; 10 Johns. Rep. 490, Ireland vs. Kip, 11 Johns. Rep. 231.)