delivered the opinion of the Court.

Peter Copeland, suing for the use of George Milne, brought this suit against James Glasgow and James Harrison, as the endorsers of a bill of exchange.

The declaration states the bill to have been drawn on the first day of March, 1842, payable six months after date, by one James Smith, on Craig, Bellas & Co., of Philadelphia. There were four endorsors, of whom the defendants were the second. Judgment was given for the plaintiff, and, to reverse it, Glasgow & Harrison prosecute this appeal.

The testimony of the plaintiff shows that the bill was protested for non-payment on the third day of September next after the date; and the witness states, that on the fourteenth day of September, or on the previous day, the firm of Smith & Carter, of which the witness was one, received notices of the protest for non-payment for the various- parties on the bill, in particular, a notice for the firm of Glasgow & Harrison.

It appears also on the record, that this bill was, on the 19th day of April, 1842, protested for non-acceptance, and in reference to this protest the same witness *271says — '“That the bill was transmitted to the said firm of Smith & Carter, soon after its protest for non-acceptance; that immediately after its receipt, be waited upon Glasgow & Harrison at their place of business in St. Louis, and intimated that the acceptance of said bill had been refused, and exibited the bill and its protest to them; that he had subsequent interviews with them, particularly with James Glasgow; that Glasgow stated, that effects which formed the consideration of the bill had been sent to the drawees at Philadelphia, and that if the bill was again presented to them for acceptance, it would be honored; that on this information, the bill was again sent to Philadelphia, and acceptance again refused.” The record then states, that “ this being all the evidence,” “ the defendants, by their counsel, prayed the court to instruct the jury that the plaintiffs had given no evidence sufficient to hold the defendants liable.” The sufficiency of evidence properly belongs to the jury to decide on. If any evidence had been given on which the jury could find for the plaintiff, this instruction could not, with propriety, be given. A new trial was also moved for on the common-place reasons. It was not necessary to present this bill for acceptance. (See Chitty on Bills, 8th edition, p. 299.) If, however, a bill be in fact, though unnecessarily, presented, and acceptance refused, &c., notice should be immediately given to the persons to whom the holder means to resort for payment, or they will, generally, be totally discharged from their respective liabilities. (Chitty on Bills, 354 ; 1 Peters, 35.) The defendant, appellant here, is entitled to notice as endorser, although the drawer may have had no effects in the hands of the drawee.— Chitty on Bills, 357.

It was proved in this cause that the usual time for the mail to pass from Philadelphia to St. Louis is ten days, and the notice should have been put into the mail on the next day after protest. — 'Chitty, 367.

But the witness says the bill was transmitted to Smith & Carter, of St. Louis, (of which firm he was one,) soon after its protest for non-acceptance, and that he, immediately after its receipt, informed Glasgow & Harrison of the protest. It is proper here to remark, that the meaning of the word “ soon” is relative. The day of trouble soon comes, if it come even in a week, a month, or, indeed, if it ever come; an inattentive and idle man might suppose he gave notice soon after the protest, if he did it in a week even. So that, if we even grant that the witness gave the notice to Glasgow & Harrison on the same day, (as he seems to intimate by using the word immediately,) yet still it cannot be called due notice of the protest for non-acceptance. _ The plaintiff may then be said to have given no notice of the refusal to accept, or of the protest for non-acceptance; and the Court of Common Pleas ought then to have told the jury that no proof had been given to make the endorsers liable.

The counsel for the appellee seems to be sensible that this is most obviously the vulnerable point in his case, and to labor hard (as if with a view to conceal the weakest point) to prove that notice of protest for non-payment was duly given. He contends, that it is not absolutely necessary to send the notice by mail. He says, and says truly, “ that when a party lives in the same place with the holder, personal service of the notice, or notice left at the house, is necessary; (10 Johnson, 490; 11 Ibid., 231;) but it is otherwise when he lives out of the ^ame town *272or city: then he may either send it by mail or by a special agent. He chose to use both mail and special agent, and this special agent lived in the same city, and, in this respect, personated the appellee himself; and it became the appellee, if he had been in St. Louis, to leave this notice either at the residence or at the place of doing business of Glasgow & Harrison. It was not unaptly observed, that had this letter been directed to Glasgow & Harrison, from Philadelphia, they would have received it as soon as the witness did. But suppose they present themselves at the post-office on the day of the arrival of the eastern mail, and find no letter there, then they come not .again till the arrival of the next mail, and lose the time betwixt the two arrivals; the effect is the same as if the plaintiff, appellee, had delayed putting the letter in the mail until the second day after the protest, with this aggravation, that although the appellee, by his attorney in fact, was present in the city of St. Louis, yet that attorney chose to throw the letter into the post-office, and expose the appellant to that risk of losing the notice which none but a non-resident can legally require him to incur. But it is useless to say any thing about the want of notice of non-payment, for, by failing to give notice of the protest for non-acceptance, the appellants are exonerated.

The judgment of the Circuit Court must be reversed.