Opinion
June Term, 1853.
1. An officer of the bank in Washington (Beaufort County), under cover to whom the notice of a protested bill of exchange was sent, proved that on the day after he received it — viz., on 10 April, 1849 — he sent it by mail to New Bern, under cover, to the defendant; that he did not know where the defendant resided, and that after learning from a gentleman of Washington, who had married a lady of New Bern, that he did not know, he desisted from further inquiry. It also appeared that in 1845, the defendant purchased a house and lot in New Bern, and that after that time, he spent a portion of each year in that place, going from his home in Onslow about the latter part of June, and returning in October, but that in 1849, he did not leave Onslow until 6 July. With this exception, the defendant had lived from his youth up, on a plantation some two miles distant from Jacksonville, the county seat of Onslow, and that was the postoffice to which his letters and papers were addressed: It further appeared, that during the years the defendant spent the sickly season in New Bern, several letters postmarked "New York" came to him, and were delivered to persons calling for them in his name, and that there was a tri-weekly mail between New Bern and Washington:
2. Held, that this proof failed to show that New Bern was the place of the defendant's residence or business, at which he usually received his letters and papers: Held further, that there was not sufficient diligence used by the plaintiff, in giving notice of the dishonor of the bill of exchange, to bind the endorser.
(The case of Denny v. Palmer, 27 N.C. 610, cited and approved.)
THIS was an action of assumpsit, against the defendant, as endorser of a bill of exchange. Pleas, general issue, payment, and statute of limitations.
Rodman for plaintiff, submitted the following brief:
Donnell and J. W. Bryan for defendant.
The bill in suit had been protested for nonacceptance in the city of New York, and the question before the court below was as to the sufficiency of the notice given to the defendant. Upon this point the facts were as follows: The officer of the bank in Washington, under cover to whom the notice had been sent, proved that on the day after he received it — that is, on 10 April, 1849 — he sent it by mail to New Bern, under cover, to the defendant; that he did not know where the defendant resided, and that after finding from a gentleman of Washington, who had married a lady of New Bern, that he did not know, he desisted from further inquiry. The plaintiff further showed by a copy of the deed, that in 1845, the defendant had purchased a house and lot in New Bern. It also appeared that after that time the defendant spent a portion of each year in that place, coming from his home, in Onslow, about the latter part of June, and returning in October; but that in 1849, he did not leave Onslow until 6 July. With this exception, the defendant had lived from his youth up, on a plantation some two (372) miles distant from Jacksonville, the county seat, and this latter was the postoffice to which his letters and papers were addressed. It was also shown that during the years that the defendant spent the sickly season in New Bern, several letters, postmarked "New York," came to him, and were delivered to persons calling for them in his name. It appeared that there was a tri-weekly mail between New Bern and Washington.
It being admitted on the trial at BEAUFORT Superior Court, during the last Spring Term, that upon this state of facts, the liability of the defendant was a question for the court, his Honor, Judge Manly, was of opinion with the defendant; whereupon, the plaintiff submitted to a nonsuit, and appealed to the Supreme Court.
1. Defendant has two places of residence, and two postoffices, to either of which notice would have been sufficient. 1 Am. Lead. Ca., 257.
2. Plaintiff used due diligence in making inquiry. Harris v. Robinson, 4 How. U.S. Rep., 336; Lowery v. Scott, 24 Wend., 358; Bank of Utica v. Davidson, 5 Wend., 587; Bateman v. Joseph, 12 East., 433; Beveridge v. Burgess, 3 Camp., 262, 5 Wend., 588; 2 Stew. Port., 428; Robinson v. Hamilton, 4 Stew. Port., 91; Ransom v. Mock, 2 Hill N. Y., 587.
3. If after due inquiry, the residence of the endorser cannot be found out, a holder is justified in sending notice to the place where the bill is dated. 6 Smedes Marsh, 255; 5 B. Munroe, 7; Denny v. Palmer, 27 N.C. 610.
It was admitted on the trial, by the counsel of both parties, that the liability of the defendant was a question of law, arising upon the facts established by the proof. Upon these facts two questions are presented: First, whether the defendant had such a residence in New Bern, as made that town a proper place at which to send (373) him a notice of the dishonor of the bill. Secondly, if it were not, whether the plaintiff, being ignorant of the defendant's actual place of residence, used due diligence in endeavoring to ascertain it, before he sent the notice to New Bern. Another question has been raised and argued by the plaintiff's counsel before us — whether, as the bill was drawn and bears date at New Bern, that is not the proper place to which notice should be sent to the endorser? But without deciding whether that question is open to the plaintiff upon the bill of exceptions, we hold that it is settled to the contrary by the opinion of this Court in the case of Denny v. Palmer, 27 N.C. 610.
Upon the first question, the proof fails to show that New Bern was the place of the defendant's residence or business, at which he usually received his letters and papers. He was born and raised in the county of Onslow; and at the time when the bill was dishonored, and the notice thereof sent, he was a planter residing within two miles of Jacksonville, the county seat of Onslow, where was kept a postoffice, through which his correspondence passed. It does not appear that the plaintiff knew that he owned a house and lot in New Bern, or that he occupied it any portion of the year, and that for that reason he sent the notice to that town. Indeed, the contrary is to be inferred from the case. But if he did know these facts, he must have known also, that the defendant was not residing there in the month of April, when the notice was sent.
The remaining question must also be decided against the plaintiff. It was his duty, if he was ignorant of the defendant's place of residence, to use due diligence to find it out. The necessity of doing this is so strong, that some delay in giving the notice will be excused on account of it. Bateman v. Joseph, 2 Camp. N. P. Rep., 461; S.C. in Banco, 12 East. Rep., 432; Baldwin v. Richardson, 1 Barn. and Cres., 245 (8 Eng. C. L. Rep., 66).
These cases will show further, that the only inquiry made in the case before us, as to the defendant's residence, was entirely insufficient. (See Byles on Bills, 222, and Beveridge v. Burgis, 3 Camp. Rep., 262.) There was a tri-weekly line of stages between the town of Washington, where the plaintiff resided, and New Bern, to which the notice was sent. There were also several persons residing in Washington, who had formerly resided in New Bern. The plaintiff or his agent, Mr. Hardenburg, might have written to the drawer or some other (374) person at New Bern, or might have made inquiries of the persons who had formerly resided there, and who therefore might have been presumed to have been able to give him the desired information. He did neither of these things, but contented himself with making inquiries of a gentleman, who is not stated to have known anything about the inhabitants of New Bern, except from what he may be supposed to have derived from marrying a lady of that town. This was altogether insufficient, and the cases cited by the plaintiff's counsel, from Wendell's (N. Y.) Reports, and Howard's Report of the Supreme Court of the United States, do not conflict with this conclusion. In The Bank of Utica v. Davidson, 5 Wend. Rep., 587, the Court says: "If the holder of a note is ignorant of the place where the endorser resides, and cannot ascertain it after diligent inquiry, notice sent to the place where the note bears date will be sufficient. If no place appear on the face of the note, notice must be sent to the place where, according to the best information to be obtained, the endorser will most probably be found." Hence it was held in that case, that notice sent to a town where the note bore date, where the officers of the bank were told by the person who presented it for discount, the endorser resided, and where in fact he did reside until a few weeks previous to the date of the notes, was sufficient. This is certainly no authority for the very slight inquiry made in this case. The case of Lowery v. Scott, 24 Wend. Rep., 358, relates to a notice to the drawer, and has no application to the present. In Harris v. Robinson, 4 Howard's Rep., 336, it was decided, that where a note was handed to a notary for protest by a bank, and it did not appear whether the bank or the last endorser was the real holder of the note, and the notary made inquiries of the cashier and others not unlikely to know, respecting the residence of the prior endorsers, and then sent notice according to the information thus received, it was sufficient to bind such prior endorsers. And the decision in Lambert v. Ghiselin, 9 How. Rep., 552, was that it was sufficient proof of due diligence to ascertain the residence of the endorser, before sending him notice of the dishonor of the bill, that the holder inquired from those persons who were most (375) likely to know where the residence of the endorser was. Surely these authorities cannot be called into the aid of the case, where the inquiry was made of one person only, and he having no other means of information than that he had married a lady of the town to which the notice was directed. Why not inquire of the lady herself, or of some one or more of the other persons who had formerly resided in New Bern? Why not write to the drawer or some other person then living in New Bern? Either would have been a much surer mode of obtaining the desired information, than the one adopted. There is no error in the judgment given below, and it must be affirmed.
PER CURIAM. Judgment affirmed.