delivered the opinion of the court.

The plaintiff in-error was sued by the Planters Bank as the indorser of a promissory note, made by Abijah Downs, payable and negotiable at the Planters Bank, at Natchez. The only question in the case is as to the sufficiency of the notice to charge the indorser.

On the trial, the plaintiff below Offered the record made by the notary who protested the note, the notary having died before the trial. Prefixed to the note was a designation of the places at which the several parties would receive notice, the *275defendant below having designated “ Mount Albon Post Office.” The evidence of notice, or memorandum made by the notary, is in these words, to wit: “All notices served' this 22d day of. October, 1836, at nine o’clock, A. M. according to their several directions specified. T. R. notary public.” The note fell-due, and was protested on the 21st of October; the plaintiff proved that Mount Albon was the nearest post office to defendant. R. M. Gaines, a witness for the defendant, stated that the bank at the time of protest had regular business hours from ten o’clock., A. M. to two o’clock, P. M., and that, according to the custom of the bank, debtors had until the close of business hours to pay their notes; that notes made payable in the bank were usually kept in the teller’s drawer on the day of their maturity. This was all the evidence offered, and the defendant’s counsel asked instructions from the court, amongst others the following, which-the court refused to give, to wit: “That the statement of the notary at the foot of the notarial record (which is above set out) is not sufficient evidence of notice, or diligence to give notice, to charge the indorser.

“ That the plaintiff must show that the notice was put in the post office, at Natchez, in time to go out by the first mail of the day succeeding the protest.

“ The plaintiff must show all the facts necessary to charge the indorser without leaving anything to intendment of inference.”

The court did instruct the jury, amongst other things, that notice of protest must be shown to have been put in the post office, at Natchez, in time to go out by the first mail of the day succeeding the protest, if the first mail of that day did not leave at an unusually early hour; that whether the notice was properly sent, the jury are to judge from all the facts and circumstances in the case, and if they believe from them that the notice was properly sent, they must find for the plaintiff, and, if not, then for the defendant. That they were to weigh the evidence and decide according to the preponderance of proof; to the giving of which instructions, and the refusal to give those asked, defendant excepted, and a verdict being found against him, he moved for a new trial, because the judge misdirected the jury, *276and because the verdict was contrary to the law and the evidence. The motion was overruled, and thereupon the defendant’s counsel' embodied the evidence in a bill of exceptions, and brought up the case by writ of error.

It is not necessary that we should decide on every point which is presented by the record and insisted on in the argument. If there be good grounds for reversing the judgment on errors which are beyond doubt, it will be unnecessary for us to attempt to settle such points as may be more questionable. We think the verdict was contrary to law and evidence, and that it should therefore be set aside.

In order to constitute a sufficient notice to charge an indorser, if it is to be sent by mail, it must, at furthest, be put into the post office in time to go by the mail of the day next succeeding the protest, if there may be a mail which goes on that day, and, if not, then by the first mail which goes afterwards. The holder need not put the notice in the office pn the same day the note is protested, but he must on the next day in time for a mail of that day, unless it leaves at an unreasonably early hour. Chitty on Bills, 10 ed. 484. 3 Kent’s Com. 105-6. 17 Mass. Rep. 449. 20 J. R. 372. 2 Wheaton, 377. 3 Con. Rep. 489. 17 Maine Rep. 381. Story on Bills, 315.

This rule has never been departed from in this country in any case which has fallen under my notice, although there seems to have been some countenance to a different one in England, particularly in the case of Hawkes v. Salter, 4 Bingham, 715. Chancellor Kent, in a note to his commentaries, has cited this and some other cases, and concludes that the rule is enlarged by them, but I apprehend that the large majority of cases will be found to correspond with the rule which prevails in this country.

It is also a rule of law that the plaintiff must prove everything which is necessary to charge an indorser. The contract of an indorser is strictly conditional. He undertakes to pay if the maker does not, provided he is duly notified of the demand and refusal. These are conditions precedent to his liability, and there is an obligation on the holder to make the demand *277and give the notice; and as the indorser is not liable unless these things have been performed, it devolves on the holder to prove that he has performed the conditions precedent, before he can compel the indorser to perform his contract. Chitty lays down the rule in the most unqualified manner, that it is incumbent on the holder to prove distinctly, and by positive evidence, that' due notice was given to the party sued, and that it cannot be left to inference or presumption. Chitty on Bills, 10 ed. 479. This doctrine is taken from the decision of Lord Ellenborough, in the case of Lawon v. Sherwood, 1 Stark. Rep. 314. Without pretending to say that it is incumbent'on the plaintiff to introduce positive proof, or to settle what grade of proof will be required, we feel well satisfied that he must make satisfactory proof that he has performed all that the law required of him to perform. He must prove everything necessary to charge the indorser. This is clearly the rule of the American cases. 3 Kent’s Com. 104. 4 Leigh’s Rep. 37. 17 Mass. Rep. 449. In the case of Smedes v. The Bank of Utica, 20 J. R., the court said, the question is not what inference the jury might draw, but what testimony does the law require in this case. We have seen that this is a condition precedent, and that strict proof is required; the law has allowed the indorser this protection; nothing short of clear proof of notice shall subject him to liability. To the same effect is the case of Goodman v. Norton, 17 Maine Rep. The obvious meaning of the rule is, that the notice which the plaintiff is required to prove must be a legal notice; that is, a notice sent in due time and properly directed.

According to these rules it will be apparent that the court gave rather too much latitude in the charger It is also apparent that the evidence did not justify the verdict.

The notary states that the notices were served the 22d of October, at nine o’clock, A. M. If it be admitted that “ served” means sent by the mail, the indorser having resided at a distance, this does not amount to an affirmative, showing that the notice was put in the office in time for the first mail, or any mail of that day. It is quite probable that the mail left before that hour; but it will not do to rest on probability. To make *278the notice sufficient, the plaintiff should have proved the hour at which the mail left. There was no proof on the subject, and the jury must have found their verdict on conjecture. It is not a verdict on complicated or doubtful evidence, but a verdict without evidence. It was not a compliance with the rule of law, which requires the plaintiff to prove that he put notice in the office in time for the mail of the next day after protest, for him to prove that he put it into the office at nine o’clock, A. M., for it by no means follows that this was in time for the mail. Nor was there any evidence that the mail of that day started at an unusually early hour, which might amount to an excuse for not sending it by the first mail which left after the day of protest.

For these reasons the judgment must be reversed and a new trial granted.