Mr. Justice Scott
delivered the opinion of the Court.
This proceeding originated in the Probate Court of Pulasld county. It was for the allowance and classification of a claim against the estate of Chester Ashley, deceased. The application was granted, and a bill of exceptions having been taken on the part of the executrix, setting out all the evidence and the rulings of the court, an appeal was taken by her to the Circuit Court. ’ That court being of opinion that there was no error in the proceedings and judgment of the Probate Court, affirmed that judgment, and the executrix appealed to this court.
It appears that the claim, proceeded for by Gunton and others, as surviving Trustees of the Bank of "Washington, was founded upon an accommodation note, made by A. PI. Sevier, payable to Chester Ashley, or order, and by the latter endorsed in blank, and the proceeds, by virtue of his written directions attached to the note, were placed to the credit of Sevier in the Bank. The note bore date the 18th of March, 1846, was payable sixty days after date; and, on the 20th day of May next following, was protested for non-payment by a notary public. Interest having been computed upon the principal sum, and two partial payments deducted, a balance was claimed to be due on the 24th of March, 1848, of the sum of nine hundred and twenty-seven dollars and fifty-seven cents, with interest from that date. This sum was sworn to by "William Gunton, in an affidavit before a justice of tlie peace, in tlie form prescribed by our statute for authenticating claims, by individual claimants, against the estates of deceased persons: and also by James Adams, Cashier of the Trustees of the Bank of Washington, in the form prescribed by the statute, for authenticating such claims, when in favor of corporations. The official character of the justice of the peace, before whom these affidavits were made, was regularly certified.
Examined copies of the resolutions adopted at a meeting of the stockholders of the Bank of Washington, a few days before the expiration of its charter, and in contemplation of that event, and of the deeds of assignment, executed in pursuance of these resolutions, to the trustees; the survivors of whom proceed in the case before us, were proven by depositions. Washington City was, by the same means, proven to be on the Maryland side of the Potomac river, and the provisions of the law of that State, in reference to the protest of bills of exchange and promissory notes, was read in evidence from the statutes of that State, published by authority. It was also proven that Col. Ashley was serving-in the Senate of the United States, at Washington City, in May,. 1846, having been elected a member of that body in November, 1844, and held that post from that time until his death. Pie had resided in Little Bock, Arkansas, for near thirty years, and when absent from home, at Washington, his house was usually kept open by some member of his family, by whom communications addressed to him at Little Bock, during the sitting of Congress, were forwarded to him at Washington City. That, in the Capitol, at Washington City, there was, in the year 1846, a Congressional, postoffice, where members of both Houses of Congress received communications addressed to them, and mailed letters and papers they desired to send out; and also a city postoffice, through which communications would reach them. That the estate of Col. Sevier • was insolvent, and would not pay the privileged debts allowed against it, nor any not secured by deed in trust made in his lifetime. That, at the time the note in question was discounted, the appellees, together with one George Bonaford, since deceased, were the surviving Trustees of the Bant of "Washington, and that, said appellees are the bona fide lawful holders of the note, on which the claim is founded. Besides the protest, read in evidence, in which nothing is stated as to notice, it was proven, by the deposition of the notary, who lhade it, that he made the demand and protest, add “on the same day delivered, at Coleman’s, hotel, in the City of Washington, where Chester Ashley, the endorser of the said note, then resided, the usual notice of nonpayment of the said note, and addressed said notice to the said Chester Asldey, and left the same at said hotel.” It was also-proven by a witness, who testified that he had been long conversant with mercantile and banking transactions, that it was not. customary for Banks, in regular business, to let a note remain, under protest, without renewal or security, for any length of time,, without being put in suit; and it was otherwise shown in evidence' that the partial payments endorsed'on the note, under dates subsequent to the protest, were made by Sevier, and not by Ashley. That Ashley departed this life after the protest; and, about seven months afterwards, Gunton, as President of the Trustees of the-Bank of Washington, advised his executrix of the note having all this time remained under protest, and enquired what arrangements would be made for its discharge, in case it was not soon paid by Col. Sevier.
After the endorser has been fixed by demand, protest and notice, mere forbearance by the holder, not based on any obligatory contract with the drawer for j^y, and which does not impair any of' the substantial rights or remedies, of the endorser’, cannot work his discharge.
Whatever objection might have been urged to the admissibility of some of the evidence, on the^ground that it was secondary, or' not the best, for aught that appears upon the record, that the-nature of the case would admit'of, no such specific objection was-in fact taken in the court below; and, for that reason, cannot now be heard here. And whatever might be in that objection, if the-case was different, which is based upon the failure of the ap* pellees to fill up the blank endorsement at some time previous to the final order of the Probate Court, it can cut no figue in this case, because of the competency of that court to allow, to a bona fide claimant; an equitable, as well as a purely legal, claim.
According to the laws’ of Maryland, read in evidence, the protest was admissible: the deposition of the notary, who made the protest, is also in evidence to the same effect, and makes the question suggested, as to the admissibility of the protest, of no consequence.
We think the claim sufficiently authenticated, under the provisions of our statute, by the affidavit of one of the joint claimants. The facts of this case, as to this point, were considered by us in connection with the cases of Beirne & Burnside vs. Imboden et al., 14 Ark. Rep. 337, and Walker as ad. vs. Byers, id. p. 247, when they were decided, although, in neither of these cases, this precise point was involved. Such an affidavit is within the letter of the statute, in its tenacity for the affidavit of the claimant himself at the peril of perjury; and as it has to be made in positive 1 terms, it could not be true if payment had been in fact made to either of the co - claimants.
A more difficult question, however, is raised in reference to the alleged notice of non-payment, which it will be necessary to examine more at large.
Demand and notice are conditions precedent to the endorser’s liability, and unless he dispenses with them in some way, or by some act of his own prevents them, Instability cannot arise without demand and notice.
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Mr. Justice Scott
delivered the opinion of the Court.
This proceeding originated in the Probate Court of Pulasld county. It was for the allowance and classification of a claim against the estate of Chester Ashley, deceased. The application was granted, and a bill of exceptions having been taken on the part of the executrix, setting out all the evidence and the rulings of the court, an appeal was taken by her to the Circuit Court. ’ That court being of opinion that there was no error in the proceedings and judgment of the Probate Court, affirmed that judgment, and the executrix appealed to this court.
It appears that the claim, proceeded for by Gunton and others, as surviving Trustees of the Bank of "Washington, was founded upon an accommodation note, made by A. PI. Sevier, payable to Chester Ashley, or order, and by the latter endorsed in blank, and the proceeds, by virtue of his written directions attached to the note, were placed to the credit of Sevier in the Bank. The note bore date the 18th of March, 1846, was payable sixty days after date; and, on the 20th day of May next following, was protested for non-payment by a notary public. Interest having been computed upon the principal sum, and two partial payments deducted, a balance was claimed to be due on the 24th of March, 1848, of the sum of nine hundred and twenty-seven dollars and fifty-seven cents, with interest from that date. This sum was sworn to by "William Gunton, in an affidavit before a justice of tlie peace, in tlie form prescribed by our statute for authenticating claims, by individual claimants, against the estates of deceased persons: and also by James Adams, Cashier of the Trustees of the Bank of Washington, in the form prescribed by the statute, for authenticating such claims, when in favor of corporations. The official character of the justice of the peace, before whom these affidavits were made, was regularly certified.
Examined copies of the resolutions adopted at a meeting of the stockholders of the Bank of Washington, a few days before the expiration of its charter, and in contemplation of that event, and of the deeds of assignment, executed in pursuance of these resolutions, to the trustees; the survivors of whom proceed in the case before us, were proven by depositions. Washington City was, by the same means, proven to be on the Maryland side of the Potomac river, and the provisions of the law of that State, in reference to the protest of bills of exchange and promissory notes, was read in evidence from the statutes of that State, published by authority. It was also proven that Col. Ashley was serving-in the Senate of the United States, at Washington City, in May,. 1846, having been elected a member of that body in November, 1844, and held that post from that time until his death. Pie had resided in Little Bock, Arkansas, for near thirty years, and when absent from home, at Washington, his house was usually kept open by some member of his family, by whom communications addressed to him at Little Bock, during the sitting of Congress, were forwarded to him at Washington City. That, in the Capitol, at Washington City, there was, in the year 1846, a Congressional, postoffice, where members of both Houses of Congress received communications addressed to them, and mailed letters and papers they desired to send out; and also a city postoffice, through which communications would reach them. That the estate of Col. Sevier • was insolvent, and would not pay the privileged debts allowed against it, nor any not secured by deed in trust made in his lifetime. That, at the time the note in question was discounted, the appellees, together with one George Bonaford, since deceased, were the surviving Trustees of the Bant of "Washington, and that, said appellees are the bona fide lawful holders of the note, on which the claim is founded. Besides the protest, read in evidence, in which nothing is stated as to notice, it was proven, by the deposition of the notary, who lhade it, that he made the demand and protest, add “on the same day delivered, at Coleman’s, hotel, in the City of Washington, where Chester Ashley, the endorser of the said note, then resided, the usual notice of nonpayment of the said note, and addressed said notice to the said Chester Asldey, and left the same at said hotel.” It was also-proven by a witness, who testified that he had been long conversant with mercantile and banking transactions, that it was not. customary for Banks, in regular business, to let a note remain, under protest, without renewal or security, for any length of time,, without being put in suit; and it was otherwise shown in evidence' that the partial payments endorsed'on the note, under dates subsequent to the protest, were made by Sevier, and not by Ashley. That Ashley departed this life after the protest; and, about seven months afterwards, Gunton, as President of the Trustees of the-Bank of Washington, advised his executrix of the note having all this time remained under protest, and enquired what arrangements would be made for its discharge, in case it was not soon paid by Col. Sevier.
After the endorser has been fixed by demand, protest and notice, mere forbearance by the holder, not based on any obligatory contract with the drawer for j^y, and which does not impair any of' the substantial rights or remedies, of the endorser’, cannot work his discharge.
Whatever objection might have been urged to the admissibility of some of the evidence, on the^ground that it was secondary, or' not the best, for aught that appears upon the record, that the-nature of the case would admit'of, no such specific objection was-in fact taken in the court below; and, for that reason, cannot now be heard here. And whatever might be in that objection, if the-case was different, which is based upon the failure of the ap* pellees to fill up the blank endorsement at some time previous to the final order of the Probate Court, it can cut no figue in this case, because of the competency of that court to allow, to a bona fide claimant; an equitable, as well as a purely legal, claim.
According to the laws’ of Maryland, read in evidence, the protest was admissible: the deposition of the notary, who made the protest, is also in evidence to the same effect, and makes the question suggested, as to the admissibility of the protest, of no consequence.
We think the claim sufficiently authenticated, under the provisions of our statute, by the affidavit of one of the joint claimants. The facts of this case, as to this point, were considered by us in connection with the cases of Beirne & Burnside vs. Imboden et al., 14 Ark. Rep. 337, and Walker as ad. vs. Byers, id. p. 247, when they were decided, although, in neither of these cases, this precise point was involved. Such an affidavit is within the letter of the statute, in its tenacity for the affidavit of the claimant himself at the peril of perjury; and as it has to be made in positive 1 terms, it could not be true if payment had been in fact made to either of the co - claimants.
A more difficult question, however, is raised in reference to the alleged notice of non-payment, which it will be necessary to examine more at large.
Demand and notice are conditions precedent to the endorser’s liability, and unless he dispenses with them in some way, or by some act of his own prevents them, Instability cannot arise without demand and notice. Notices, which are not personal, must necessarily be given in writing, whether through the channel of the postoffice or some other; but, in common legal parlance, all notices are, in general, deemed personal, except those transmitted through the postoffice; because they are either actually so, or ' regarded as tantamount to personal notice. Hence, the expression, so often found in the books, that when the parties live in the same town, the notice must be personal.
So, of personal notice, it is constantly said in tbe books, that notice in writing, left at tbe place of business, or at tbe residence of the endorser, is tantamount to actual- personal notice. All these, however, are but comprehensive expressions, entirely true in their general scope, but the doctrines they inculcate are qualified by other doctrines, more in detail, and equally well settled, to which these general expressions do not reach.
To .fix the endorser’s liability, the law does not require the strictest and utmost diligence in the holder, but only that fair and reasonable effort, which the law calls due diligence. 2 Caines Rep. 126. Hence, in interpreting the contract between the parties for the conditional liability of the endorser, it requires that the latter shall, within usual business hours, be at his place of business, and during the usual homs of suspension of business,., be at his residence, or else to have some suitable person to represent him at these respective places within'these respective hours. When, therefore, the endorser performs what is thus required of him, due diligence, on the part of the holder, would carry notice home to him; and, consequently, when the parties live in the same town, and the holder uses due diligence, but, in fact, notice does not reach the endorser, the law deems it the endorser’s own fault, and adjudges that he has thereby prevented the holder from performing the condition precedent to his liability.
The true question then, in cases like this before us, is, whether due diligence has been used by the holder; not whether he has given notice, or the endorser has received it. Dickens vs. Beale, 10 Peters Rep. 580. And “this consists in giving notice, if after the usual and propea’ enquiries are made, it is practicable to give it; but if, when this is done, the holder or notary.cannot give the notice personally, when the p'arties reside in the same place, or does not know where to direct it by mail, the inquiry is due diligence, without notice. Id., same page. And the proof of diligence is upon him who asserts it. United States vs. Baker ad., 4 Wash. C. C. R. 465. And it is ,not to be presumed, nor that the notary was negligent, but to-be determined upon the proof. Rives vs. Parmley, 18 Ala. R. 262. A place of business must be understood to be a place actually occupied, either continually or at regular periods, by a person,' or bis clerks, or those in bis employment. 8 Porter's R., Stephenson vs. Primrose, p. 167. And a private boarding bouse where the endorser lodged, must be considered, to all intents and purposes, his dwelling bouse. Bnk. U. S. vs. Hatch, 6 Peters R. 257.
Judge KeNt says, “ Where the bolder and endorser reside in the same town, notice to the latter will be good, if left at bis dwelling bouse, in a way reasonably calculated to bring the knowledge of it home: and if the bouse be shut up by a temporary absence, still the notice may be left there, or at his place of •business.” 3 Kent Com. 107. This latter clause is no doubt true .enough; but if the call was within the proper hours respectively, :and there was no proper person there to receive the notice, all •the authorities on the point show that the leaving of the notice, under such .circumstances, would be a work of supererogation, because the effort to give the notice, under such circumstances, would itself constitute due diligence.. So, Judge Stoky says, of the mode of giving notice, where the parties reside in the same place, *“It may be by a verbal notice to the party personally, or it may be by .a written notice left at his domicil, or place of business. If the notice be written, it is not indispensable to be given to him personally. It is sufficient if it be sent, or delivered to .some suitable person at his place of business, such as Ms clerk or agent, or to some suitable person at his place of residence. If the .call is made at reasonable hours, and no person can be found to whom the notice can be communicated^ the holder, or other party giving the notice, will be excused from further efforts."” Story on Bills, sec. 300, and authorities there cited.
The result is, that when the leaving of notice at the place of business or residence, in his absence, will have the effect to fix the drawer or endorser, it must be delivered to some proper person. If none such be there, within the proper hours, the leaving of the notice is unnecessary, and a work of supererogation, because the effort to give the notice under such circumstances itself constitutes due diligence. When the drawer or endorser is sought to be charged upon the ground of such notice having been left at his place of business or residence, it is incumbent upon the plaintiff to show that it was left under such circumstances as are sufficient to fix his liability ; and of this, he' must make clear proof. Bell vs. The Hagerstown Bank, 7 Gill’s Rep. 231. On this latter ground, the plaintiff was nonsuited in the case of Lawson vs. Sherwood, 1 Stakie 314; where the proof was, that notice was served on'the defendant two or three days after the dishonor of the bill, under circumstances, when notice on the second day would have been good, but not on the third day, Lord ElleN-boeough refusing to go upon “probable evidence without proof of the fact,” because it was upon the plaintiff ‘-‘to show that notice was given in due time.”
The cases of Rives vs. Parmly, 18 Ala. Rep. 256, and Coster Robinson & Co. vs. Thomason, use, &c., 19 Ala. Rep. 717, distinctly -recognize these doctrines, and are full to the point, “that to charge the drawer or endorser of a bill by notice, left at his place of business or residence, it should be delivered to a clerk, if there be one, at the former placp, or to some proper person at the latter, if any such be there, or it should be certified that no one could be found on application at siich places.” 19 Ala. Rep. 721. In the former case, the proof was that “notice of protest left at the boarding house of P. E. Eives, and at the office of L. Parmly — each this day.” In the second case, it was, “Notice of protest left at the offices of the first 'and second endorsers.” In both cases, for want of proof that the notices were left under such circumstances as would charge the endorser, the holder was not permitted to recover.
In. the case before us, the proof of due diligence falls equally short. The circumstances under which the notary left the notices at- Coleman’s Hotel, are not shown further than that he delivered, at that hotel, the usual notices of non-payment, and addressed said notices to said Chester Ashley, and left the same at said hotel. It does not appear whether .Ashley was in the hotel when the notary called, no.r whether any enquiry was made for him, nor whether the notices were handted to any person to be delivered to him; or whether any person was at the hotel or not. For aught that has been shown, the notary, when he called, might not have enquired for Ashley at all, or may have seen him, and not given the notice, but gave it to a stranger, who happened to be there in trcmsiUc, or even deposited it in the passage, or some private room, or otherwise left it in a manner, or under circumstances, wholly insufficient to charge an endorser, when he could have delivered it to him in person, had he enquired for him.
■ In the case of the Bank of the United States vs. Hatch, 6 Peters Rep. 256, where it was held that the delivery of the notice at the boarding house, to affellow-boarder, with a request that he would deliver it to Hatch' — 'the notary having first enquired for Hatch, and been informed that he was not within, was sufficient, Judge Stoet remarked that, if the delivery had been to the master of the house, or to a servant of the house, there would have been no doubt of its sufficiency, and he cited the case of Steadman vs. Gooch, 1 Esp. Rep. 4, where the notice, left with the woman who kept the house, at which the party was a lodger, was held good, with no particular stress by the court, that decided the case, upon her character as proprietor, so as to distinguish it from a delivery to any other inmate of the house, whether servant or boarder. So, in the case of Bradley vs. Davis, 26 Maine Rep. 45, the notice was left with the bar-keeper at the Fremont House, in the city of Boston. But in the case before us, it does not appear with whom, if any one, it was left, or even that it was dropped in an urn, kept standing in the bar, as was the arrangement at the Fremont House, from whence letters were taken by persons to whom they were directed; and, if not taken within an hour or two, were sent off to their respective rooms.
Due diligence being the imperative prerequisite of the holders right to recover of the endorser, because of the ¿conditional contract of the latter, and the onus to prove due diligence being upon the bolder, we are compelled to say, in tlie light of tbe authorities we have cited, and others of the same caste, that we have examined, that such diligence as the law requires to charge a drawer or endorser, has not been shown in this case.
Finding this to be so, it is entirely unnecessary to examine the other question raised — which depends upon an alleged local custom of the banks in the District of Columbia — as to whether this note was not prematurely protested.
And although this case has been determined upon a dry point of law, it may not be improper to.$ay that it is not altogether improbable that the result is consistent with its abstract right and justice on the merits, in view of the discrepancy, as to notice, between the protest in evidence and the deposition of the notary, who made it, and the unusual delay of the Trustees of the Bank, shown by the evidence, in taking steps against the endorser.
The judgment must be reversed, and the cause remanded to the Circuit Court, with instructions to reverse the judgment of the Probate Court, and enter up, and certify to that court, such judgment as ought to have been rendered in the Probate Court. Digest, eh. 4, sees. 181,182.