Hosmkr, Ch. J.
The charge to the jury, in this case, was not conformable to law. It comprised these two propositions; that the notary should have made enquiry at Middletown, for the place of the defendants’ residence, the omission to do which, was a fatal neglect ;'and, that the holders were obliged to give immediate notice of non-payment to the defendants, and to deposit it in the post-office in season to go by the next mail. To these positions, I cannot accede.
A neglect,to make enquiry, when the residence of the person is unknown, accompanied with the entire omission to give notice, or the transmission of notice in such a manner, that it was not received, nor likely to have been received, is entirely inexcusable. It is emphatically the omission of reasonable diligence. But if a mode of reasonable notice, char-acterised by due diligence, be resorted to, the enquiry contemplated, becomes useless. The cases of Chapman v. Lipscombe, Johns. Rep. 294. and Barnwell & al. v. Mitchell, ante, 101. were determined on the principle, that want of knowledge, which might easily have been procured, constitutes no excuse; and have no bearing on the question before us. Buir [495]*495was acquainted with the residence of the defendants; and a notice, with due diligence, sent to him, by the mail, to complete the direction, and to put it into the post-office at Hartford (or transmission, was all that reasonably could have been required. This point was decided in the case of The Utica Bank v. Smith, 18 Johns. Rep. 240.; and with entire correctness.
No specific mode of notice, is by law prescribed; nor is any thing further required, than the exercise of ordinary and reasonable diligence.
The holder of an inland bill or note, is not obliged to send notice of non-payment, until the next day after its dishonour. It is said by Chitty, p. 320. that “ it is in no case necessary to give notice of non-payment of an inland bill on the day of refusaland decided cases warrant the assertion. Haynes v. Birks, 3 Bos. & Pull. 599. Darbishire & al. v. Parker, 6 East 3. Scott v. Lifford, 9 East 347. Robson & al. v. Bennett & al. 2 Taun. 388. Lansdale & al. v. Trimmer, 15 East 290. Williams v. Smith, 2 Barnw. & Ald. 498. “ The holder of a bill,” said Lord Ellenborough, in Smith v. Mullett, 2 Campb. 208. “is not, omissis omnibus aliis negotiis, to devote himself to giving notice of its dishonour. It is enough, if this be done with reasonable expedition. If you limit a man to the fractional part of a day, it will come to a question how swiftly the notice can be conveyed.” The same point is established, in a contiguous sister state. Jackson v. Richards, 2 Caines 343. Ogden & al. v. Cowley, 2 Johns. Rep. 274. Bank of Utica v. Smith, 18 Johns. Rep. 230. And so far as my knowledge extends, this is conformable to our practice.
The note being payable at the Middletown bank, that was the place at which it should be presented for payment. Saunderson & al. v. Judge, 2 H. Bla. 509. Woodbridge & al. v. Brigham & al. 13 Mass. Rep. 556. Chitt. Bills, 266.
To the fact or legality of the presentment, no objection has been made. Nor is it susceptible of controversy, whether the notice of dishonour was given by the proper person. I consider it to be unquestionably established, on the foundation- of general usage, that neither the demand nor notice need be by a party to the note or bill. It is sufficient if a demand is made, and notice given, by a notary, s' In the case of The [496]*496Bank of Utica v. Smith, 18 Johns. Rep. 240. it was said, by Spencer, Ch. J., alluding to demands made by notaries ; “ These officers are in the practice of doing so; and being ‘commissioned by the government, their official acts are of a more solemn nature than those of individuals : For the same reasons, a notice of non-payment by a notary, is also available ; and it is the constant and uniform course, sanctioned by a long and continued usage.55 A demand of payment, by an agent, having parol authority, or the mere possession of the paper, is sufficient to validate the presentment and notice. Freeman & al. v. Boynton, 7 Mass. Rep. 483. 486. Little v. Obrien, 9 Mass. Rep. 423. 427.
There exists no doubt that notice might legally be transmitted by the mail. Where the parties reside in the same town or city, at which the acceptance or payment is refused, the notice must be personal, or left at the dwelling-house, or place of business, of the party to be charged. Ireland & al. v. Kip, 10 Johns. Rep. 490. S. C. 11 Johns. Rep. 231. But if they reside in a different town, the notice may be, and usually is, by mail. This principle is too firmly established in reason and general convenience, to be shaken by argument, or varied by artificial exceptions.
It has been said, that after the letter directed to the defendants, had reached the hands of Burr, the cashier of the Hartford bank, he should have delivered it personally. This observation entirely misconceives the nature of the transaction, and the capacity in which Burr acted. The notice was not sent to the Hartford bank, to be by them transmitted ; nor was it received by Burr, as cashier; but as the agent of the notary, on his personal request and authority. The letter was never in possession of the Hartford bank, nor of their agent, acting in the capacity of agent; and the misconc^ption of these facts, could alone give birth to a question on this subject.
If the law exacted of the holder of a bill or note, that he should give the earliest possible notice of its dishonour, short of sending it by express ; the facts contended for, by the plaintiffs, would satisfy the principle. It is clearly apparent, that the letter was received by Burr, and after the superscription of the defendants1 place of residence, put into the post-office at Hartford, as early as it would have been there, [497]*497had the direction been perfected at Middletown. The letter was delivered for transmission at the post-office, if the plaintiffs’ claim is correct, more than a day previous to the time by law required ; and was awaiting the reception of the defendants at Hartford, several hours before the period in which they could legally demand it. If the notice was at the risk ttf the plaintiffs, (a point on which I express no opinion) until it was deposited in the post-office at Hartford, by Burr, this, so far from furnishing the defendants with an objection, pre-eminehtly establishes it to have been the more unobjectionable.
The principle, that the law requires the exercise of ordinary and reasonable diligence, but not the earliest notice possible, was, in my judgment, best complied with, by omitting to waste time in an enquiry at Middletown, which might have been unavailing, and sending the notice immediately to a person acquainted with the defendants’ place of residence, that the deficiency in the direction might be supplied.
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Hosmkr, Ch. J.
The charge to the jury, in this case, was not conformable to law. It comprised these two propositions; that the notary should have made enquiry at Middletown, for the place of the defendants’ residence, the omission to do which, was a fatal neglect ;'and, that the holders were obliged to give immediate notice of non-payment to the defendants, and to deposit it in the post-office in season to go by the next mail. To these positions, I cannot accede.
A neglect,to make enquiry, when the residence of the person is unknown, accompanied with the entire omission to give notice, or the transmission of notice in such a manner, that it was not received, nor likely to have been received, is entirely inexcusable. It is emphatically the omission of reasonable diligence. But if a mode of reasonable notice, char-acterised by due diligence, be resorted to, the enquiry contemplated, becomes useless. The cases of Chapman v. Lipscombe, Johns. Rep. 294. and Barnwell & al. v. Mitchell, ante, 101. were determined on the principle, that want of knowledge, which might easily have been procured, constitutes no excuse; and have no bearing on the question before us. Buir [495]*495was acquainted with the residence of the defendants; and a notice, with due diligence, sent to him, by the mail, to complete the direction, and to put it into the post-office at Hartford (or transmission, was all that reasonably could have been required. This point was decided in the case of The Utica Bank v. Smith, 18 Johns. Rep. 240.; and with entire correctness.
No specific mode of notice, is by law prescribed; nor is any thing further required, than the exercise of ordinary and reasonable diligence.
The holder of an inland bill or note, is not obliged to send notice of non-payment, until the next day after its dishonour. It is said by Chitty, p. 320. that “ it is in no case necessary to give notice of non-payment of an inland bill on the day of refusaland decided cases warrant the assertion. Haynes v. Birks, 3 Bos. & Pull. 599. Darbishire & al. v. Parker, 6 East 3. Scott v. Lifford, 9 East 347. Robson & al. v. Bennett & al. 2 Taun. 388. Lansdale & al. v. Trimmer, 15 East 290. Williams v. Smith, 2 Barnw. & Ald. 498. “ The holder of a bill,” said Lord Ellenborough, in Smith v. Mullett, 2 Campb. 208. “is not, omissis omnibus aliis negotiis, to devote himself to giving notice of its dishonour. It is enough, if this be done with reasonable expedition. If you limit a man to the fractional part of a day, it will come to a question how swiftly the notice can be conveyed.” The same point is established, in a contiguous sister state. Jackson v. Richards, 2 Caines 343. Ogden & al. v. Cowley, 2 Johns. Rep. 274. Bank of Utica v. Smith, 18 Johns. Rep. 230. And so far as my knowledge extends, this is conformable to our practice.
The note being payable at the Middletown bank, that was the place at which it should be presented for payment. Saunderson & al. v. Judge, 2 H. Bla. 509. Woodbridge & al. v. Brigham & al. 13 Mass. Rep. 556. Chitt. Bills, 266.
To the fact or legality of the presentment, no objection has been made. Nor is it susceptible of controversy, whether the notice of dishonour was given by the proper person. I consider it to be unquestionably established, on the foundation- of general usage, that neither the demand nor notice need be by a party to the note or bill. It is sufficient if a demand is made, and notice given, by a notary, s' In the case of The [496]*496Bank of Utica v. Smith, 18 Johns. Rep. 240. it was said, by Spencer, Ch. J., alluding to demands made by notaries ; “ These officers are in the practice of doing so; and being ‘commissioned by the government, their official acts are of a more solemn nature than those of individuals : For the same reasons, a notice of non-payment by a notary, is also available ; and it is the constant and uniform course, sanctioned by a long and continued usage.55 A demand of payment, by an agent, having parol authority, or the mere possession of the paper, is sufficient to validate the presentment and notice. Freeman & al. v. Boynton, 7 Mass. Rep. 483. 486. Little v. Obrien, 9 Mass. Rep. 423. 427.
There exists no doubt that notice might legally be transmitted by the mail. Where the parties reside in the same town or city, at which the acceptance or payment is refused, the notice must be personal, or left at the dwelling-house, or place of business, of the party to be charged. Ireland & al. v. Kip, 10 Johns. Rep. 490. S. C. 11 Johns. Rep. 231. But if they reside in a different town, the notice may be, and usually is, by mail. This principle is too firmly established in reason and general convenience, to be shaken by argument, or varied by artificial exceptions.
It has been said, that after the letter directed to the defendants, had reached the hands of Burr, the cashier of the Hartford bank, he should have delivered it personally. This observation entirely misconceives the nature of the transaction, and the capacity in which Burr acted. The notice was not sent to the Hartford bank, to be by them transmitted ; nor was it received by Burr, as cashier; but as the agent of the notary, on his personal request and authority. The letter was never in possession of the Hartford bank, nor of their agent, acting in the capacity of agent; and the misconc^ption of these facts, could alone give birth to a question on this subject.
If the law exacted of the holder of a bill or note, that he should give the earliest possible notice of its dishonour, short of sending it by express ; the facts contended for, by the plaintiffs, would satisfy the principle. It is clearly apparent, that the letter was received by Burr, and after the superscription of the defendants1 place of residence, put into the post-office at Hartford, as early as it would have been there, [497]*497had the direction been perfected at Middletown. The letter was delivered for transmission at the post-office, if the plaintiffs’ claim is correct, more than a day previous to the time by law required ; and was awaiting the reception of the defendants at Hartford, several hours before the period in which they could legally demand it. If the notice was at the risk ttf the plaintiffs, (a point on which I express no opinion) until it was deposited in the post-office at Hartford, by Burr, this, so far from furnishing the defendants with an objection, pre-eminehtly establishes it to have been the more unobjectionable.
The principle, that the law requires the exercise of ordinary and reasonable diligence, but not the earliest notice possible, was, in my judgment, best complied with, by omitting to waste time in an enquiry at Middletown, which might have been unavailing, and sending the notice immediately to a person acquainted with the defendants’ place of residence, that the deficiency in the direction might be supplied.
It was claimed by the plaintiffs, that the proceeding in relation to the notice, was according to the course usually pursued, by the Hartford and Middletown banks, in such cases ; which was known to the defendants; and that if this fact were true, the objections made by the defendants, were entirely subverted ; and that, to this effect, the jury should have been instructed. There is no universal rule, as to what shall constitute reasonable notice. It is a fact required for the benefit of the persons, who are to be charged, by reason of the dishonour of a bill or note ; and such persons, undoubtedly, may waive this privilege. This may be effected, by an explicit waiver, or by one implied from other facts appearing in the case. In Blanchard v. Hilliard, 11 Mass. Rep. 85. it was adjudged, “ that the usages of a bank, at which the parties to a promissory note are accustomed to transact business, \ respecting the time of demand and notice on such notes, may be • shewn, not as forming rules for the decision of the court, but ; as evidence of the assent of the parties to such usage, and of their waiving their legal claims. To the same effect is the case of The Lincoln & Kennebeck Bank v. Page, 9 Mass. Rep. 155. decided by the same court.
[498]*498jf the facts claimed by the plaintiffs are susceptible of proof, the demand against the defendants ought to be substantiated ; and that this may be attempted, I would advise a . , new trial.
Peters, J.
. ... It requires neither arguments nor authorities to prove, that payment of the note in question was demanded at the proper time and place, by a proper person. Though a notarial protest of inland bills and promissory notes is unnecessary, and serves only to enhance expence ; yet his acts are as valid as those of aiiy other agent. What, then, was his duty? To demand payment of the note, and give notice of its dishonour to his principal, or the party to be charged thereby. But it was the paramount duty of the principal to see that notice was given.
Notice is either actual or constructive. The first is necessary, when the parties reside in the same town. This is not pretended ; ana the facts disclosed, furnish no evidence of the latter. In Ireland v. Kip, 10 Johns. Rep. 490. S. C. 11 Johns. Rep. 234. where the parties resided in New-York, it was expressly decided, that notice deposited in the post-office in that city, was insufficient, although the defendant had directed the letter-carriers of the post-office, to leave all letters that came to the post-office for him, at a particular house not his residence. “ It is an invariable rule,” says Spencer, J., in delivering the opinion of the court, “ that When the parties reside in the same city or place, notice of the dishon-our of bills or notes must be personal, or something tantamount, such as leaving it at the dwellipg-house, or place of business, of the party.” The delivery of such notice at the post-office, unaccompanied with proof that it was actually delivered at the house, is not notice. Had the plaintiffs’ cashier made the demand, and lodged his notice in the post-office in Hartf ord, or had the notary done the same, the case would have been precisely within the rule in Ireland v. Kip. What more has been done ? The notary at Middletown, where the residence of the defendants was a matter of public notoriety, but unknown to him, neglects to enquire, and sends his notice to his employer, who5 instead of handing it to the defendants, puts it into the post-office at Hartford, and now claims, that it is notice by mail. Had it been properly directed and [499]*499mailed at Middletown, it would have been sufficient evidence of notice, whether received or not. '
In Barnwell & al. v. Mitchell, ante 101. where notice was improperly directed, the residence of the defendant was known to the public, but unknown to the plaintiff, who neglected to enquire, this court unanimously decided, that the defendant was not liable.
The usage of the banks, said to have been known to the defendants, was so faintly urged at the trial, that it escaped observation; and is now so imperfectly stated, that it ought to escape notice.
1 would not advise a new trial.
Brainard, J. concurred fully in the opinion of the Chief Justice.
Chapman and Bristol, Js. concurred also in that opinion, except what relates to the usage of the banks. On this point, the former declined giving any opinion, as there was, without it, sufficient ground for a new trial; while the latter thought, that the usage claimed was not so stated, that it could be properly considered in the decision of the case.
New trial to be granted.