[Bank of the United States vs. Carneal.]

It differs from a technical plea of puis darien continuance, only in this circumstance, that the satisfaction is alleged to have been after the commencement of the suit, instead of after the last continuance of the suit. In principle, however, they do not differ, since each of them requires the same commencement and conclusion; that is, instead of actio non, generally, each must be pleaded with the prayer of actio non ulterius habere, &c.; and the judgment must follow the prayer, and is repugnant to and incompatible with that of a general judgment upon matters before the suit brought. As, therefore, the same judgment cannot be rendered upon the general issue, and upon such a plea of matters arising after the suit brought, it is difficult to perceive how they can be united. But it is the less necessary to rest any absolute decision upon this point, because we are all of opinion, that the judgment below ought to be reversed upon the exceptions taken to the merits.

The Court below ruled, that the evidence adduced at the *trial, was not sufficient in law to charge the defendant as [*549 endorser. That evidence was supposed to be deficient in two respects: 1st, That there was not a proper demand of payment of the note of the maker, at the time when it became due; and, 2d, that due notice was not given of the non-payment to the defendant as endorser.

Upon the first point the evidence is, that on the day when the note became due, the note was in the bank at Cincinnati, the bank being the holder thereof, and it being payable there; and that after the usual banking hours were over, it was delivered to a notary, by the officers of the bank, for protest, they informing him at the time, that there were no funds there for the payment of the note. We are all of opinion that this was a sufficient proof of a due demand of payment. Where a note is payable at a bank, it is not necessary to make any personal demand upon the maker elsewhere. It is his duty to be at the bank within the usual hours of business, to pay the same, and if he omits so to do, and a demand is there made of payment by the holder within those hours, and it is refused or neglected to be made, the holder is entitled to maintain his action for such dishonour. But where the bank is itself the holder of the note so payable, no formal demand is necessary to be made of payment. The maker has the whole period of the usual banking hours to pay it, and if he does not pay it within those hours, it is equivalent to a demand, and refusal of payment on his part, and the note ought not to be delivered out for protest until after those hours are passed. If the bank has funds of the maker in its hands, that might furnish a defence to a suit brought for non-payment. But this is properly matter of defence to be shown by the party sued, like any other payment, and not matter to be disproved by the bank by negative evidence. This doctrine was recognised by this Court in Fullerton vs. The Bank of the United States, at the last term. 1 Peters' Rep. 604. 617.

Then, as to the other point of notice, the facts are, that the de

[Bank of the United States vs. Carneal.]

fendant, Carneal, resides in Campbell county, in the state of Kentucky. The note became due on the 24th of October, 1820, and on the next day, the notary put a sealed *notice of the pro *550] test and non-payment into the postoffice in Cincinnati, directed"To Thomas D. Carneal, Campbell county, Kentucky," the postage on which was not paid. At that time, Carneal's residence in Campbell county, was without the limits of any post town, and about two miles from Cincinnati, across the river Ohio; and his residence was well known to the officers of the bank, as well as the postmaster at Cincinnati. The county seat of Campbell county is Newport, where there is a postoffice, about three miles distance from Carneal's residence, the river Licking being between them; and there is also another postoffice at Covington, below the river Licking, about two miles distance from his residence. In October, 1820, the mails from Cincinnati passed once a week only through Covington, and three times a week through Newport. Carneal was in the habit of receiving letters at the Newport office, as well as at the offices in Covington and Cincinnati. He was in the habit of receiving all the letters directed to him at Cincinnati, at the office in that place, and had given orders to the postmasters to detain all such letters there until he called for them. He visited Cincinnati very frequently, and almost daily, having business, and being a director of a bank located at that place. The postmaster was in the habit of sending letters directed to him, in Campbell county, by the Covington mail, whenever he observed the address, unless, as was sometimes the case, he called for letters at the office before the Covington mail was sent. But other letters, directed generally to Campbell county, when the place of residence of the party was unknown, were sent by the postmaster to Newport. The notary himself, when he put the present notice into the postoffice at Cincinnati, supposed that Carneal received all his letters at that office. The first mail which left Cincinnati for Newport, after the deposite of this notice, was on the 26th of October; and the first which left for Covington, was on the 28th of the same month. There is no evidence in the case that the letter in question went either by the mail of the 26th to Newport, or by that of the 28th to Covington. The defendant, Carneal, has not produced the letter, if it was ever *received by him; and the circumstances afford a strong presumption that it might have been received at Cincinnati. Such is a summary of the material facts, upon which this Court is called to pronounce whether there was due diligence in the transmission of the notice to the defendant. The latter having asked the Court below to instruct the jury as in case of a nonsuit, and the Court having acceded to his request, that instruction can be maintained only upon the supposition, that there was no contrariety of evidence as to the facts which ought to have been left to the jury; and, consequently, every inference fairly deducible from the facts, which afforded a presumption of due notice, ought to made in favour of the plaintiffs.

*551]

[Bank of the United States vs. Carneal.]

It is difficult to lay down any universal rule, as to what is due diligence in respect to notice to endorsers. Many cases must be decided upon their own particular circumstances, however desirable it may be, when practicable, to lay down a general rule. When notice is sent by the mail, it is sufficient to direct it to the town, where the party resides, if it is a post town. If it is not, then to the postoffice or post town nearest to his residence, if known. But the rule, as to the nearest postoffice, is not of universal application, for if the party is in the habit of receiving his letters at a more distant postoffice, or through a more circuitous route, and that fact is known to the person sending notice, notice sent by the latter mode will be good. And where the party is in the habit of receiving his letters at various postoffices, to suit his own convenience or business, it may be sufficient to send it to either. The object of the law in all these cases is to enforce the transmission of the notice by such a route as that it may reach the party in a reasonable time. This doctrine is fully recognised by this Court in the case of the Bank of Columbia vs. Lawrence, decided at the last term. 1 Peters' Rep. 578.

It has been objected, that the direction of this letter to Campbell county generally was not sufficient, but that it ought to have been directed to the nearest office, for otherwise it might happen, that it would be sent to a postoffice which, though the county seat, might be very distant from the residence of the party. Whether a mere direction to the county, without farther [*552 specification, where the party does not reside in any town therein, would be sufficient in all cases and under all circumstances, we do not think it necessary to decide. That question may well be left until it is necessary in judgment. But where the description is general, if it is in fact sent to the proper postoffice, or if, after due inquiry, it is the only description within the reach of the person sending the notice, we think it may be safely declared to be sufficiently certain, and that a different doctrine would materially clog the circulation of negotiable paper. We think the description in the present case was in every view sufficient. There was no mis-direction; for Carneal did live in Campbell county. His actual residence was well known to the postmaster at Cincinnati, and the description did not and could not mislead him. If the direction was observed, it would be sent to Covington, or would be delivered at Cincinnati. If not, it would be sent at farthest to Newport.

Then, was the notice in fact duly given, or duly sent through the proper postoffice? We are all of opinion that it was. The postoffice at Cincinnati was almost as near to the party's residence as that at Covington. The difference is too trifling to afford any just ground of preference; and Cincinnati was the place where he was most likely to receive the letter promptly, since it was the place of his business, and of his habitual and almost daily resort. If it had never been transmitted from that office at all, we are not prepared to say, that, under such circumstances, the notice left there was not

[Bank of the United States vs. Carneal.]

of itself sufficient, since the party was known there and his description unequivocal. It does not appear in point of fact, that it ever left that place for any other postoffice. If it did not, the strong presumption is, that it was there delivered to the party. But if it was sent to Newport, how can the Court say that it was mis-sent? The party was in the habit of receiving letters there; it was the county seat; and the mail by that route was three times a week, and that by Covington only once a week. The probabilities, therefore, in favour of an early receipt of the letter from this cir*553] cumstance, might fairly balance any in the opposing scale, from the increase of distance, and the intervention of the river Licking. And in fact, the letter would at that time have reached Newport two days earlier than it would have reached Covington. We think it would be inconvenient and dangerous to lay down any rule, that the person sending a notice ought, under such circumstances, to direct the letter to the nearest postoffice. We think that the notice would have been good by either route; indeed good, if left at the postoffice at Cincinnati.

A suggestion has been made at the bar, that a letter to the endorser stating the demand and dishonour of the note, is not sufficient, unless the party sending it also informs the endorser that he is looked to for payment. But when such notice is sent by the holder, or by his order, it necessarily implies such a responsibility over. For what other purpose could it be sent? We know of no rule that requires any formal declaration to be made to this effect. It is sufficient, if it may be reasonably inferred from the nature of the notice.

For these reasons we are all of opinion that the judgment of the Circuit Court ought to be reversed; and the cause remanded, with directions to award a venire facias de novo.

414

"DAVID CANTER, APPELLANT, US. THE AMERICAN AND OCEAN INSURANCE COMPANY OF NEW YORK, APPELLEE.

A motion to dismiss a suit for want of jurisdiction, applies solely to cases where this Court has not jurisdiction of the cause; and not where the Circuit Court has exceeded its proper jurisdiction in the particular case.

THIS case was heard, and decided upon the preliminary question which it involved, in January term, 1828. See 1 Peters, 511. On the hearing, the Supreme Court decided in favour of the claimant, and decreed restitution of the cotton, which was the subject of controversy. By the mandate, directed to the Circuit Court, it was ordered "that such execution and proceedings be had as, according to right and justice, and according to the laws of the United States, ought to be had." The mandate being filed in the Circuit Court, it was ordered that the same be recorded, "that the case be put on the docket, and it be referred to the officer of this Court to examine into the damages sustained by the claimant, David Canter, in consequence of the proceedings of the libellants; and report thereon at as early a day as possible to the Court."

Upon this order of Court being made, Mr. Canter filed a statement of his claim, and the case went before the register.

The counsel for the defendants filed with the register the following protest:

And now, on this sixteenth day of July, one thousand eight hundred and twenty-eight, the said libellants, by Petegru and Cruger, their proctors, object to the order of reference made by the honourable the Circuit Court of the United States, for the sixth circuit, to ascertain the damages alleged to have been sustained by the respondent in this case, and they article and protest against all acts and proceedings under the same, for these reasons, to wit: 1st, That the mandate of the Supreme Court of the United States, gives no authority or instructions to the Circuit Court to inquire into damages. 2d. That the decrees of the District, *Circuit, and Supreme [*555 Courts do not award damages to the respondent. 3d, That the libellants are not in any manner liable for damages. 4th, That at all events the inquiry as to damages cannot extend beyond the amount of libellants' stipulations, by which alone they are before the Court. PETEGRU & CRUGER, Proctors for Libellant.

These objections were disallowed, and the register proceeded to take evidence subject to the protest, and to examine into the claim of damages; and afterwards made a report upon the claim to the Circuit Court.

The Circuit Court having by their decree disallowed the claims of the appellant to damages, with the exception of a small amount, an appeal was entered to this Court.