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postoffice, and if he has no place of business in the city."1 And there are decisions denying this rule as to an indorser who lived one and a half miles," a few miles,23 but applying it to indorsers who live four or five miles, and nine miles out of the city.

24

But the rule of the nearest postoffice is only a rule of presumption. For a notice that is directed to the postoffice where the person receiving notice is in the habit of receiving his mail will unquestionably be sufficient regardless of the rule of the nearest postoffice.25 And if the indorser should be in the habit of receiving mail at more places than one, notice to either of these places is sufficient; 26 yet in Louisiana (a state where almost any kind of a decision upon this phas of the law may be found, and where the multitudinous decisions lead one to imagine that the most active pursuit of the population was the indorsing of notes, which the makers never paid), the court thought an indorser ought to be protected against a postoffice twenty-two miles away from his residence, even though he was foolish enough to receive his mail there sometimes. If now the holder or his agent knows that the indorser is in the habit of receiving his mail at a certain postoffice, the notice may be directed there even if it be not the nearest; 28 but he is not compelled, it appears, to

27

21 See note 8 to § 272, ante.

22 Forbes v. Omaha Nat. Bank, 10 Neb. 338. And see notes 6-8, § 272, ante.

23 Ireland v. Kip, 10 Johns. 490, 11 Johns. 231. See notes 6-8, § 272, ante.

24 See notes 6-8, § 272, ante.

25 Bank of U. S. v. Carneal, 2 Pet. 543; Glasscock v. Bank of Mo., 8 Mo. 443; Mercer v. Lancaster, 5 Pa. 160; Nevins v. Bank, 10 Mich. 547; Montgomery Co. Bank v. Marsh, 11 Barb. 645, 7 N. Y. 481; Shaylor v. Mix, 86 Mass. 351; Grief v. McDaniel, 14 La. Ann. 155; Farmers' Bank v. Battle, 4 Humph. 86;

Walker v. Stetson, 14 Ohio St. 89:
Hazelton Coal Co. v. Ryerson, 20
N. J. Law, 129.

26 Bank of U. S. v. Carneal, 2 Pet. 543; Follain v. Dupre, 11 Rob. (La.) 454; Menzies v. Farmers' Bank, 3 Ky. Law R. 822; Crawford v. Read, 9 Rob. (La.) 243. See Shelburne Falls Bank v. Townsley, 107 Mass. 444; Mechanics' Bank v. Compton. 3 Rob. (La.) 4.

27 Pritchard v. Scott, 7 Mart. (N. S.) 491.

28 Follain v. Dupre, 11 Rob. (La.) 454; Grand Gulf Co. v. Barnes, 12 Rob. (La.) 127; Bank of Illinois v. Taylor, 7 T. B. Mon. 579; Reid v.

do so. But if the holder does not know the fact he needs not inquire, but should follow the rule of mailing to the nearest postoffice.29

31

There is yet another consideration that will govern the rule of mailing to the postoffice nearest the residence of the recipient of notice. While, as we have seen, the presence of an address for the indorser, not put upon the note by the indorser, will not justify the sending of notice there without inquiry, a direction to the holder to send notice to a certain place can be deviated from only at the risk of the holder.30 This direction as to notice will be reasonably and liberally and not strictly construed. It governs the rule as to the nearest postoffice," and the accustomed postoffice as well. The direction need not be given necessarily by the indorser, for the order to direct notice given by the drawer for an accommodation indorser,33 or the direction as to notice to indorser given by the person who presents the paper for discount, apparently for the indorser, is binding upon the indorser. But the direction as to notices must be given to the holder. He cannot take advantage of a direction given to the postmaster as to the forwarding of mail, in order to avoid the force of the rule as to the nearest postoffice."

34

But it should not be forgotten that these rules are only compulsory when the indorser or drawer has not received

Payne, 16 Johns. 218; Seneca Co.
Nat. Bank v. Neass, 3 N. Y. 442.

29 See last case in last note and Taylor v. Bank of Illinois, 7 T. B. Mon. 576.

30 Paterson Bank v. Butler, 12 N. J. Law, 268. See as to address on paper, Bowling v. Harrison, 6 How.

248.

31 Menzies v. Farmers' Bank, 3 Ky. Law R. 822. See Follain v. Dupre, 11 Rob. (La.) 454; Priestley v. Bisland, 9 Rob. (La.) 425.

32 Carmena v. Bank of La., 1 La. Ann. 369; Crowley v. Barry, 4 Gill,

191.

33 Bank of Utica v. Bender, 21 Wend. 643.

34 Bank of Utica v. Davidson, 5 Wend. 587.

35 Ireland v. Kip, Anth. N. P. 195. In the upper courts the point was missed. This point would seem to be the only ground upon which this decision can be justified. But the point is really immaterial. It proves that the person has been getting his mail at the place, and if the holder does not know of the change, mailing to the place is good. McGrew v. Toulmin, 2 Stew. & P. 428.

notice in due time. If he has received such notice in due time from the holder, or from some other party to the paper, as herein before stated, it is immaterial how the notice was directed, or to what place it was directed,37 or who conveyed it,38 or where it was received.39

36

§ 280. Absence from home.- Incidentally, in the preceding section upon personal service, the effect of a person's absence from his home was noticed. The rule may be stated to be that the temporary absence of a person from his residence does not require any different method of service whether the absence be for several days or several months.1 If his place of business or his residence is kept open, service there otherwise good ought in all cases to be upheld. If the person is traveling, it would be absurd to expect the holder to pursue him from place to place with a notice. It is the duty of the person leaving home to make provision for proper attention to his business while he is away. The rule is reasonable and proper from every standpoint. It has been so held as to a person traveling in Europe, and as to a person who has accepted a consulship, and in a number of other contingencies, such as temporary absence from one's boarding house or office or residence. The rule ought to be that in case of absence from his residence the indorser or drawer should be served at his residence without attempt

36 See note 22, § 281, post. 37 See note 22, § 281, post. 38 See note 22, § 281, post. 39 See note 22, § 281, post.

1 McCrummen v. McCrummen, 5 Mart. (N. S.) 159; Walker v. Stetson, 14 Ohio St. 89; Goodwin v. McCoy, 13 Ala. 271; Wooley v. Lyon, 117 Ill. 244; McMurtrie v. Jones, 3 Wash. C. C. 206: Gist v. Lybrand, 3 Ohio, 307; Isbell v. Lewis, 98 Ala. 550; Burkhardt v. Fourth Nat. Bank, 6 Wkly. Law Bul. 138. But see Runyon v. Montfort, 44 N. C. 371.

2 See Murray v. Ormes, 3 Mac A. 60.

3 McMurtrie v. Jones, 3 Wash. C. C. 206.

4 Burkhardt v. Fourth Nat. Bank, 6 Wkly. Law Bul. 138.

5 See Bradley v. Davis, 26 Me. 45; Bank of U. S. v. Hatch, 6 Pet. 250. See Rives v. Parmley, 18 Ala. 256.

6 Hobbs v. Straine, 149 Mass. 212; State Bank v. Hennen, 4 Mart. (N. S.) 227.

7 Lawrence v. Ralston, 3 Bibb, 102; Curtis v. State Bank, 6 Black f. 312.

ing to ascertain his whereabouts or waiting for his return. Even though the house be closed during the absence, the notice may be left with a neighbor with directions to deliver." But it has been held that where an indorser with his family had left his home, which was kept open and occupied by servants, a notice left at the house was not a good service, if the holder by reasonable diligence could have ascertained that the family were absent.10 The family had gone south within the rebel lines, and there was no showing whatever that they had an established residence or even a nomadic stopping place elsewhere. The case is undoubtedly a wretchedly erroneous decision. In another case the indorser was away from his residence and within the Confederate lines, and a notice by mail was sent to his place of residence, and the notice was held bad." In yet another case the indorser was away from his residence and serving in the rebel army, and a notice left at his residence was held bad.12 On the principle of these decisions, if a man in the far west should absent himself from his residence and go out upon the range for the purpose of stealing cattle, a notice left at his house or mailed to his postoffice would be badly served, a conclusion absurd enough; yet the two cases do not differ except in the species of illegality that actuated the person leaving home. It is exceedingly difficult to avoid the impression of a political prejudice in these rulings of the court. The court seems to have thought that the interruption of communication by war cut some figure, but that is material

8 See Walker v. Stetson, 14 Ohio whether that fact was known to the St. 89. The opinion is accurately

server.

9 Williams v. Bank of U. S., 2 described by the word "béte.” Pet. 96. 12 McVeigh v. Allen, 29 Gratt. 588.

10 Alexandria Sav. Inst. v. Mc- See the same case 26 Gratt. 785, Veigh, 84 Va. 41.

11 Gilroy v. Brinkley, 12 Heisk. 392. The court in this case does not see that the whole point is whether the residence of the indorser had been established anywhere else, and

where the opinion by Moncure, J., who seemed to be much more of a lawyer than the judge who delivered the controlling opinion, correctly states the law. It is pitiful to read the opinion of Anderson. J.

only when the residences of the party serving and the one to be served are separated by the theatre of war. Here the only question to determine was that of residence or no residence at the place of serving. But even conceding that the indorser had obtained a residence in Richmond, nevertheless he kept his house at Alexandria, and there was nothing to show that the server had not exercised full diligence. It is difficult to speak of such opinions with anything but impatient distaste. Judges who make them simply certify to their own either incompetence or unfitness.

The cases of members of legislatures, while on service with their legislative bodies, may be considered sometimes as cases of change of residence, sometimes of temporary absence from home. If the legislator keeps a residence at his home, notice may be served there, though the proprietor is in Washington serving in the legislature.13 A notice left at the Washington lodgings after congress had adjourned, where the congressman had returned, as was his habit, after adjournment to his home in Virginia, a home which he kept open all the time, was held to be not properly served.1 Again, it has been held that a notice left at the postoffice of the House or Senate for a member of either body was not good without showing an actual reception of it; 15 but a notice left at the legislator's room in the hotel where he stopped was properly served. If the congressman retains a residence in his state it is wrong to send the notice to Washington by mail," although afterwards the court held it a proper proceeding where the member had no residence or

13 Marr v. Johnson, 9 Yerg. 1. Compare with Gilroy v. Brinkley, 12 Heisk. 392. The two cases are irreconcilable.

14 Bayley v. Chubb, 16 Gratt. 284. The learned reporter informs us that in this case Lee, J., did not "set." Compare McVeigh v. Allen, 29 Gratt. 588.

There was no right to make mail service.

16 Graham v. Sangston, 1 Md. 59. The court was compelled to make the presumption that the room was the member's residence.

17 Walker v. Tunstall, 3 How. (Miss.) 259. This case amounts to saying that the domicile and not

15 Hill v. Norvel, 3 McLean, 583. the residence is the place to serve

notice.

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