Patrick v. Beazley

delivered the opinion of the court.

We take it to be a well settled and universal rule, that, where the indorser resides in the same town or place with the holder of a dishonored note or bill, notice -of protest must be personal, if, on diligent inquiry, the indorser is to be found; or, if he is absent, it may be left at his dwelling or place of business; and that, in suph case, notice left at the post office is not sufficient; that when the party, entitled to notice, resides in a different place, .notice may be then sent through the post office to the post town or office which may be nearest his residence. This is- recognized to be the doctrine in regard to notice, in all the books. The only exception which appears to have been at any time allowed, is the use of the convenience of the penny post in large cities, when the indorser lives in a part of the city remote from that ’ of the holder, or in its *616neighborhood. It was sanctioned by the court of King’s Bench in England, in the case of Scott and others v. Lifford, 1 Camp. 249. In that case the court say, that if the indorser resided either in the city of London or its near neighborhood, notice by this mode might be sufficient. But the court in New York refused to allow a transmission by the letter carrier in the city of New York to be, sufficient; and when the indorser resided more than three miles from the City Hall, held that he was entitled to personal notice, although it was proved that he had given instructions to the letter carrier -to leave all letters directed to him at the post office at a particular house in Frankfort street, at which he called or sent every day for letters. The notice was put in the post office, and under this proof it was insisted that it was sufficient. But the court held otherwisé. Ireland v. Kip, 11 J. R. 231.

The courts have manifested a constant jealousy of admitting relaxations of the rule which requires personal service of notice, and have never permitted it, except in cases of strong necessity for the convenience and benefit of commerce. But this necessity, under which transmissions by mail arfe allowed, can never bfe'said to exist when the parties reside in the same town or place, and therefore, when that is the case, the courts will not dispense with personal notice. But it is urged that this principle does not apply where the indorser resides beyond the limits of the town, when notice through the post office is sufficient, if it be the post office nearest his residence. This argument assumes a. distinction which is not taken in the case which has just been noticed, of, Scott and others v. Lifford, when the allowance of the uSe of the penny post was not made to depend upon the question whether the indorser resided in the city of London or its near neighborhood. And the effect of that decision is manifestly at war with any such discrimination; for it puts the residence in the near neighborhood of the city upon the same ground with a residence in the city. To permit this distinction would necessarily expose parties entitled to notice to an uncertain and very often to a capricious and arbitrary rule, extremely embarrassing to the courts in making an application of it, and therefore injurious to commercial pursuits. It is often very difficult to determine the precise limits of towns, when they have not been incorporated; and, in thqt case, different opin*617ions may exist as to where they cease and the country begins. In cases of cities or incorporated towns a surer criterion is fixed by the boundary line, and yet a moment’s reflection must satisfy all that the rule would not be the less exposed to embarrassment, if not to ridicule; for it may so happen, and in large commercial towns such will no doubt often be the case, that a party living within the admitted environs of the place, may yet be beyond the actual boundary line of the corporation, and so lose a privilege to which he would be otherwise clearly entitled. .And, as was very properly said by the counsel for the defendant, it may turn out that two persons may be subject to a different law, who yet reside within twenty steps of each other, the one within and the other beyond the line.

And again: one who resides two miles from the holder may claim personal notice, whilst another, living perhaps within fifty yards of him, must take the chances of the post office. Such a discrimination appears to us to be without reason or foundation. The obvious meaning of the courts when they require personal notice, if the indorser lives in the same town or place, is, the same immediate neighborhood, whether it be in town or 'the country.. It was evidently, so understood by the judges in New York, in Blip’s case, and has been so considered by the supreme court in Tennessee, in two cases exactly like the one at bar. Mart. & Ver. 183; 1 Yer. 166.

The court of appeals in Kentucky have sustained the same views. In the case of the Bank v. Butler, 3 Lit. 500, it appeared that the indorser lived four or five miles from the town of Russel-ville, where the holder of the note resided, and that the notice was directed to him at that town, and put in that post office. They held this to be insufficient, although if was the post office nearest to his residence. They say the law allows a transmission by mail, only in cases when the indorser resides in another place, between which and the post office where the notice is mailed there, is a regular post road.

The supreme court of Louisiana have, in repeated and' numerous cases, settled the question in the same way. In Clay v. Oakley, 5 Martin, N. S. 139, the notice waá left in the post office at Alexandria, directed to the indorser at that place; and the court *618held it to be insufficient, saying, it made no difference whether he resided in or out of the town. •• In the case of the Bank v. Rowell, 6 ibid. 508, the indorser lived three miles from the town of Baton Rouge, at which post office the notice was deposited, and it was determined not to be sufficient, although it was proven that she was in the habit of sending a servant regularly to that office for letters, and that they seldom remained in the office longer than forty-eight hours. The same was ruled in the case in 7 Martin, 492. ' '

It is thus shown that in three of the states this precise question has been settled by repeated adjudications, and that in the state of New York the principle established by her courts is in' exact harmony with that of the others. Against this weight of precedent, the case of the Bank of Columbia v. Lawrence, 1 Pet. S. C. Rep. 584, has been,produced, and its authority relied on. -It must be admitted that the court has there decided the question differently; a result to be attributed, as we conceive, to a misapplication of the rule which permits transmissions of notice through the mails. It is remarkable that, the opinion of the court recognizes the identical principles throughout which are laid' down by the .judges in the cases just noticed in Louisiana, Kentucky and -Tennessee; and so' fully does the judge who delivered it concur with the New. York courts, that he refers to one of the cases decided by them for the authority upon which he relies. . It must have been with the viexv to fortify .the general rule, stated by the judge, that he refers to the case of Reid v. Payne, 16 J. R. 218, and not to sanction its application to the case before him, for there it is an authority against him. In that case the note was payable at Albány, and was^there protested for non-payment; and notice was placed in the post office there to be mailed for Greenbush, a post office at another place. The only question for the court was, whether notice sent to Greenbush was sufficient, as it appeared from the proof that the indorser resided at Schodac'k, where there was also a post office. But, it being proved that, he was in the habit of receiving his letters at Greenbush, the notice was held sufficient. “No cases,” says the judge, in deciding the case of the Bank v. Lawrence, “have fallen under the notice of the court which have suggested any limits to the distance .from the post office within which a party *619must reside in order to make the service of the notice in this manner good. But cases have occurred where the distance was much greater than in the one now before the court,.and the notice held sufficient.” And he then refers to the case of Reid v. Payne, in New York. The facts in that case, however, were wholly different, and the defendant resided in a different town or place; ánd it was to that state of case that the court in New York applied the rule, that notice may be sent by the mail to the post office nearest to the residence of the indorser! And hence judge Thompson concludes, that, as Georgetown, whei’e the notice was deposited, was nearest to the residence of the defendant, the notice was sufficient, though he resided within two or three miles of that place. The court must have been influenced by the circumstance that the general usage of the bank had been to give notice in that mode, which was known to the defendant; and we must conclude that, had the cases which had been decided in Kentucky, Louisiana and Tennessee fallen under his notice and attention, he must have come to a different conclusion.

The case of Stamps v. Brown, Walker’s Reports, 526, appears to us to have been decided under a clear misapprehension of the doctrine in the case of Shed v. Britt, 1 Pick. Rep. 411. That is the case which is referred to by the judge who expressed the opinion of the court, to support his conclusions. Judge Nicholson remarks, that “though no good reason can be given why an indorser residing without the limits of the town or city should not be entitled to as strict notice as one residing in the town, yet for the sake of convenience a line must be drawn, beyond which, notice by mail is sufficient, and consequently concludes that a letter deposited in the post office nearest his residence is sufficient, and refers to the above case in Pick. The judge evidently alluded by this remark to the line of the corporation as being the criterion of the question. But the court in Massachusetts say, there cannot be one law for an indorser who may reside just over the line, and another for one who may live only a mile on this side. And they add, that whenever the indorser resides in a town in which there is a post office, different from that in which the note is dishonored, it is proper to send notice by the mail.” The only question raised in this case was, whether notice in any case sent by mail is more than prima *620facie evidence of notice. And the court held it to be conclusive. The notice was mailed, and directed to the defendant at Bridge-water, a post town entirely different from that in which the holder resided.. We feel constrained, therefore, to differ from the court in its conclusions in the case of Stamps v. Brown.

We do not deem it necessary to notice the other questions which are raised in the assignment of errors, qs the judgment must be reversed for the error which has just been considered.

Judgment reversed, and a venire de novo awarded.

dissenting.

I concur with the court in the reversal of the judgment of the court below in this case. The indorsement sued on was the joint indorsement of the plaintiff in error and one Hiram Coffee; and to entitle the holder of the note to recover against Patrick, I conceive it was equally necessary to show that Coffee had also been legally notified of the non-payment of the note at maturity. In support of this I refer to Bayley on Bills, 285, and Bank of Chenango v. Burt, 4 Cow. Rep. 126.

But I dissent -entirely , frohx the opinion of my brother judges upon the main question in tijjUs case, and upon which their decision is founded. The statement contained in the bill of exceptions, that “the drawers and indorsers will acknowledge notice at Jackson, Mississippi,” would of itself authorize the notice to Patrick through the post office at that place. As it does not appear by the record that under this agreement the notice was to be personal or left at any particular place in Jackson, the jury had a right to conclude that the agreement intended the notice to be left at the post office there: it being the post office where Patrick was in the habit of receiving his letters and papers, and where he was in the constant habit of applying for them.

But independently of these views, I am decidedly of the opinion, that a notice to an indorser of the non-payment of a note or bill of exchange, deposited, after due demand of payment, on the same day or morning following in the post office nearest the indorser’s residence, or where he is in the habit of getting his letters and papers, when he lives without the corporate limits of the city or town, is legal notice to charge him; although the note or bill may *621be payable and protested in the same city or town. , And, without going into critical review of the authorities which have been cited, I rest my opinion, mainly, upon the decision of ihe supreme court of this state in the year 1832, in the case of Brown against Stamps, reported in Walker’s Reports, 526, the fact of its recognition by the bench and bar ever since, and the usage and rights which have become fixed under that decision. In that case this very question arose directly, and was fully discussed; and it was then solemnly decided by our highest judicial tribunal, that,’where the indorser resides out of the corporate limits of the town where the note is payable or the maker resides, personal notice is not necessary,, but notice through the post office is sufficient. The principle of that decision was fully acquiesced in at the time, and has never been agitated till the present occasion. The law was then definitively settled upon this subject; and the practice or usage of the whole community of merchants,, bankers, planters, mechanics, lawyers, and of every one who had a bill or note to protest or indorser to notify, has been in conformity to that decision from that day to this. To say that this rule shall be now changed, and thereby release every indorser whose liability has been fixed according to the decision mentioned and the practice under it, would require reasons to satisfy my mind which I have not yet heard.

All our rules of law, in fixing the liabilities of parties to bills of exchange and promissory notes, have originated in commercial usage and been finally settled by judicial decisions. These rules are all established upon the ground that the observance of them is most likely to give to those interested'notice of the dishonor of the paper, without too great an inconvenience to the holder. Undoubtedly, personal-notice to the indorser would be the best; but this rule is relaxed so that when the parties reside in the same place, a notice left at his residence or at his place of business is - deemed amply sufficient: when a notice left at the post office is just as likely to reach him as one left at his place of business, and at the same time it would be wholly defective when he resides in the same place. These rules, therefore, in regard to the protest of commercial paper, and the discharge or liability of the parties to it, are arbitrary, dependent upon usage and judicial decisions, as stated; and when once established by judicial decision, ought not, *622in.my opinion, to be changed, so as' to affect the past, and'destroy rights and liabilities -which have arisen under them.

Even a legislative enactment ought, I-conceive, to act only pro-' spectively in such cases; • When the rights and liabilities of parties have been ascertained and fixed by the adoption of a rule acquiesced in b.y every one, and sanctioned, by our supreme court, it becomes a part of -the common law of the land, and the consequences resulting from a sudden change are just as- serious as if it were founded hi a positive, law; arid rights ought to be as sacredly regarded in the one .case. as in the other. The injuries and mischiefs too, which spring from such sudden changes, (changes resting wholly .with tire court as to’ the requisite diligence to be. used by the holder, of a note or bill,) are incalculable. No one, familiar with the business of this country, and the extent to which the credit system has been carried for the last few years, can doubt that by the decision of my brother judges in this case, indbrsers whose liabilities were fixed by .existing law will be.discharged from those liabilities to an immense amount, indbrsers -who never dreamed of such discharges. Besides, the difficulty, not to say impracticability, of giving personal notice where the indorsers reside ten, fifteen or twenty miles from the place, and on a day when a great deal of paper may be protested, such as occurs on the 4th of January, every year, outweighs with me any .conceivable advantages that might result from the adoption of tire rule now established by the court.

I cannot, therefore, find any principle, upon, which I can subscribe to this,, to me, new doctrine; so inconvenient in practice, and so startling and alarming to the holders of paper, who have done every thing to charge the parties which the law as then known to them — as expounded by the supreme court of this state years ago — required them to do. The most eminent judges in England and America have always felt themselves constrained to bow "to the' supremacy of long established usage, and have considered themselves bound by former judicial decisions upon the same point. See the elaborate and very full opinion of the supreme court of the United States upon the subject of usage generally, in the case of Renner ¶. Bank of Columbia, 9 Wheat. Rep. 581. And this principle, too, for which I contend, is recognized *623by courts in instances where the usage is in violation of some strict positive law. Such as the taking of interest in advance, and the use of Rowlett’s Tables in computing interest, as decided by this court in the case of the Planters’ Bank v. Snodgrass, 4 How. Rep. 573. And decided in like manner in most of the states of the Union.

Thus, Lord Kenyon, in delivering his opinion in the case of Brown v. Harradin, upon the subject of days of grace being allowable on promissory notes, adverting to the consequences that would result from a contrary doctrine, says: “In addition to these considerations, we are now told that it has been the constant practice at the bank and at the principal bankers, to make this allowance on promissory notes. Then if we were to make a decision in opposition to all this practice, it would be attended with the most serious consequences.” For “if we were to determine that no such allowance (as the three days’ grace) ought to be made, all those parties would be involved in the crime of usury; and again, all the holders of notes who made no demand on the makers till the expiration of the three days, and who afterwards resorted to the indorsers, will have been guilty of laches.” And more expressive language than this may be found in 1 Dev. Rep. 100; 9 Wheat. Rep. 585.

And such is not only the language of judges, but it is the language of reason and experience in the common affairs of life, “that certain rules should be established to govern all cases in future. That pure patriot, and great statesman, and I may say eminent civilian, James Madison, in discussing the obligations we are under to recognize the judicial decisions of our predecessors, even on constitutional questions, uses the following language: “And why are judicial precedents, when formed on due discussion and consideration, and deliberately sanctioned by reviews and repetitions, regarded as of binding influence, or rather of authoritative force, in settling the meaning of a law? It must be answered, first, because it is a reasonable and established axiom that the good of society requires that the rules of conduct of its members should be certain and known, which would not be the case, if any judge, disregarding the decisions of his predecessors, should vary the rule of law according to his individual interpretation of it. Misera *624est servitus ubijus est aut vagum aut incognitum. Second, because an exposition of the law, publicly made, and repeatedly confirmed by the constituted authority, carries with it by fair inference, the sanction of those who, having made the law through their legislative organ, appear under such circumstances to have determined its meaning through their judiciary organ.”

How forcible, how applicable, or rather how much stronger is the present case in favor of the opinion, to which my mind is irresistibly brought? We are not now construing a clause in the constitution, nor fixing the meaning of a legislative enactment. We are simply determining the rule as to the degree of diligence necessary to be used by the holder of a note to charge an indorser in such a case as the present. The notice given to the indorser was in conformity to a usage so well established and so general in this state that, in my opinion, “courts of justice are bound to notice it ex officio; and, in the absence of any proof to the contrary, will presume that such was the understanding of all the parties to a note when they put their names upon it.” 9 Wheat. 585. And this notice to Patrick, too, was in conformity to the decision in the supreme court in the case of Brown and Stamps, already cited; which decision settled the law of this case as permanently as this court or any other can ever settle it in this state. For we cannot expect our successors to be more regardful of our decisions than we are of those of our predecessors.

If I deemed it necessary, on this occasion, to go beyond the limits of this state for authorities to support my opinion, I would refer to the opinion of the supreme court of the United States, directly and clearly in point, in the case of the Bank of Columbia v. Lawrence, 1 Pet. Rep. 578. And I will barely add, in conclusion, that the general usage upon this question, the decision of our own supreme court, years since, sanctioned by the opinions of our judges and lawyers till the present time, with the consequences that must follow from a contrary decision, and the decision of the supreme court of the United States just referred to, have infinitely more weight with me, in such a case as the present, than any decisions that may have been made in Tennessee, Kentucky, Louisiana, or any other states of the Union.