Walker v. Tunstall

delivered the opinion of the court.

There are two grounds relied on by the plaintiff in error to reverse the judgment of the court below. First, that the endorsement on the writ was a variance from the declaration, and that, for that reason, the demurrer to the plea in abatement should have been overruled; and secondly, that the notice to the plaintiff in error, was not sufficient to charge him as endorser of the note.

First. The note is correctly described on the back of the writ in all things, except as to the place of payment. It was described as payable at the Planters’ Bank,, when, in truth, it was payable at the Agricultural Bank, and so described in the declaration. The statute provides that it shall’ be the duty of the clerk or plaintiff’s attorney to endorse on all writs to compel appearance, the *263nature of the action, whether founded on bond, bill, note or other written contract, covenant or agreement, or on open account, and the amount of the sum actually demanded, or whether the same be brought to recover damages for wrongs and injuries done to the property or person of the plaintiff; and also whether bail be or be not required. Rev. Code, 107. This can only be regarded as a notice to the defendant of the nature of the action. It in reality constitutes no part of the writ. If the plaintiff states in it more than he was bound to do, it can only be surplus-age, and may be rejected; at most it can afford no ground for a plea in abatement. In this instance, the plaintiff’s attorney did all that the statute requires. The nature of the action is given, and said to be founded on a note, the amount thereof being stated. This is all that the statute requires, and the endorsement might here have stopped; it cannot be vitiated by the addition of time and place of payment. No good reason can be perceived why such variance should be fatal. It is an immaterial variance, and considering the endorsement as a notice, it could only, at most, have entitled the defendant to a continuance. The demurrer to the plea in abatement was, therefore, properly sustained.

Secondly. Was the notice sufficient to charge the plaintiff in error as endorser? This question necessarily arises out of the instructions asked of the court, as applicable to the case as it was presented on the trial. Although the general principles of law, in relation to the liability of endorsers, are but few, and seem to be well settled; yet so varied are the cases in which it becomes necessary to make an application of the law, that it is often difficult to determine whether the endorser is liable or not. The liability is to be tested by the steps which have been taken by the holder of the note.

The great object of the law is that the endorser, whose undertaking is conditional, should be informed of the dishonor of the note, so that he may withdraw his funds, or take immediate measures to protect himself against loss. To this end the holder must give immediate notice of the dishonor. The most certain means of accomplishing this object must be adopted. When personal notice can be given, that is most certain of all other modes, and should be adopted. When that cannot be done, however, *264notice may be left at- the residence of the endorser, and this is equivalent to personal notice, because the law presumes that it is sure to be received. Where such notice cannot be given in consequence of the distant residence of the party, it will be sufficient to give notice through the mail, directed to the nearest post office to the endorser’s residence, or to such office as he may be in the habit of getting his letters from. If he has changed his residence, and after due diligence his place of abode cannot be ascertained, it will still be sufficient to leave it at his last known place of residence. If he is temporarily absent, but has still a place of residence, it will be sufficient to leave notice there, as is most likely to reach him. If he cannot be served personally with notice, and has no place of residence, or it cannot be ascertained after diligent inquiry, the failure to notify may be excused, by so averring in the declaration. These are all but means to accomplish the same end, and in every step the law imposes on the holder, reasonable diligence in bringing home notice to the endorser, so that he may be on his guard. Does the case before us come within any of these rules? The notice was directed to Washington City, and put in the post office; the plaintiff in error being a member of the senate, from Mississippi. Under what circumstances would such q. notice be deemed sufficient? If he had no known place of residence in Mississippi, or if, after diligent inquiry, his place of residence could not be ascertained, then the notice might be good. In order to ascertain this, we must resort to the testimony, which is set out in the bill of exceptions.

It was in proof that when the note became due, it was regularly protested for non-payment. That notice of protest was sent, in due course of mail, to the plaintiff in error, directed to Washington City, District of Columbia. The witness, did not know where the plaintiff’s residence was, but that he was' at that time a member of the United States senate, and he supposed he was at Washington City, and that this was the only notice given. It was further proved that Walker was a citizen of the state of Mississippi, and that he had changed his residence in September, 1835, from Natehez to Madison county, in the same state. That Madison county was his last known place of residence, and that he was in Washington City at the time the note was protested and *265notice sent. That he had sold his place in Madison county in May, 1836, but in the sale had retained a part of it, and the witness did not know whether the dwelling house was on the part retained or not. The residence of Walker was neither known to the witness, nor shown at the time of the protest of the note.

This testimony, although not positive, is sufficient to raise a fair presumption that Walker was, at the time of the protest, still a citizen of Madison county. It is certain that he had resided there nine months previous, and it is not certain that he had changed his residence. He had only sold part of his plantation, and whether the part sold included his dwelling or not, the witness did not know. Under such circumstances, and with a knowledge of these facts, what was the duty of the holder of the note? The books speak one universal language, to wit: that reasonable diligence must be used in order to ascertain the residence .of the endorser; and if, after such diligence, it cannot be found, the holder will be deemed to have done his duty. Has the holder, in this instance, brought himself within the rule? The witness stated that, at the time of protest, he did not know where Walker’s residence was, but at the time he was a member of the senate, and he supposed he was at Washington City. Did he inquire where his residence was? No such thing is stated. No effort whatever was made to ascertain whether Walker still lived in Madison county, although it was known that his last residence was there, and it was not known that he had changed it. It is probable that the necessary information might have been obtained without much difficulty, but no trouble was taken to acquire it. It is not certain whether this testimony was given by the notary or not; the bill of exceptions does not show. It is probable that it was, and although he did not know where Walker’s residence was, it does not follow that others were equally uninformed. Not a single inquiry was made, however, in regard to it. This was culpable neglect; and to give sanction to it, would be to dispense with all diligence. It was incumbent on the holder to have made inquiry, whether Walker still resided in Mississippi, and if he did, notice should have been directed to his place of residence. That he was at Washington City at the time made no difference. His absence was but tem*266porary, and the duration of that absence uncertain. In case of such absence from home, the law presumes that some member of the family is still at the residence, and that communications will be forwarded to the proper address. That in this way, an endorser is most likely to be informed of the dishonor of the note. If Walker had no residence in Mississippi, that fact probably might be sufficient to sustain the notice, but without such showing it must be deemed insufficient. Under such circumstances, notice addressed to his last place of residence might also be deemed sufficient. On these points, however, it is unnecessary to decide. The court erred, therefore, in charging the jury that notice sent to Washington, if it was known that Mr. Walker was there, was sufficient, without also charging that reasonable diligence should have been used to ascertain his residence. Reasonable diligence is indispensably necessary to charge an endorser. 3 Campbell, 262; 12 East, 433; 20 Johns. Rep. 372; 5 Yerger, 67; 9 Yerger, 1.

The judgment must be reversed, and cause remanded, and venire de novo awarded.