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test of reasonable diligence has been defined to be the amount of care a reasonably prudent man of business would exercise in regard to matters upon which he desired to act with correct information. Whether or not these phrases define anything at all more than the fact that the standard of the law is a reasonably prudent man it is difficult to say, but they have at least received the full meed of judicial approbation. From the decisions a number of rules for the determination of correct diligence can be derived, but the application of them will vary with varying circumstances. For after all, due diligence is an ultimate fact to be gathered from the probative facts in evidence. If those facts are in dispute, the question of due diligence, in this case as in all others, is one for the jury under cautionary instructions from the court. If the facts are such that reasonable men might differ in regard to the conclusion from them of due dili gence, the question is none the less a matter for the jury. If the facts, however, are undisputed and the matter is one about which reasonable men could not differ, the question is one for the court.

Assuming now that the server of notice has inquired of the owner, and the holder of the paper has no knowledge as to the place of residence of the indorser or drawer, he must govern himself by making proper inquiries. He cannot assume that the indorser has retained a residence which he had some considerable time prior to the date of indorsing; although, as we have said, he may assume that the residence at the time of indorsement or drawing has been retained." If he has reasonable ground to think that he knows the residence or has ascertained it, he exercises due diligence in acting upon his belief.10 Subject to this presumption he should examine the paper itself. If it be payable at a particular place, as a bank, inquiries must be made at that place." He may act

7 Palmer v. Whitney, 21 Ind. 58. 8 Planters' Bank v. Bradford, 4

Humph. 39.

9 See the preceding section.

10 Barr v. Marsh, 9 Yerg. 253;

Palmer v. Whitney, 21 Ind. 58;
Wood v. Corl, 4 Met. 203.

11 Goodloe v. Godley, 13 Smedes & M. 233.

upon information received there if it indicates the residence of the person to be charged.12 If he does not receive sufficient information there he should inquire of the parties to the paper, such as the maker or drawer or other indorsers; 13 he cannot rest upon the bank's lack of information as to the residence. If it be the drawer he is seeking, however, he may not address him at the place where the bill is drawn without inquiry," according to some authority, but may do so without further inquiry, according to other authority." Where the paper is not payable at a particular place, if it be a note he should inquire of the maker or of the other parties, if he knows the residences of those parties.16 He is justified in acting upon the information indicating the residence which he receives," even though the information be incorrect; as, for example, where another person had the same name.18 But information from a casual stranger (this term is used for want of a better), which turns out to be incorrect owing to the identity of names, ought not to have been acted upon. But this seems to be an instance of ex post facto wisdom. If information be not received in the preceding manner, inquiry should be made from those who are most likely to know where the person to be charged is,20 and if informa

12 Herbert v. Servin, 4 N. J. Law, 225; Hunt v. Nugent, 10 Smedes & M. 541; Cabot Bank v. Russell, 4 Gray, 167.

13 Gilchrist v. Donnell, 53 Mo. 591. See the language of the court in Whitridge v. Rider, 22 Md. 548; but Goodloe v. Godley, 13 Smedes & M. 233, says that no further inquiry is necessary.

14 See the preceding section. And he must make due inquiry as to whether there be a postoffice at the place. Tyson v. Oliver, 43 Ala. 455. 15 See the preceding section.

16 Gilchrist v. Donnell, 53 Mo. 591; Earnest v. Taylor, 25 Tex. Sup. 37; Mitchell v. Young, 21 La. Ann. 279.

17 Harris v. Robinson, 4 How. 336; Gawtry v. Doane, 51 N. Y. 84 (information from the maker); Eager v. Brown, 11 La. Ann. 625 (information from the drawee).

18 Libby v. Adams, 32 Barb. 542. 19 Lawrence v. Miller, 16 N. Y. 235. See Chapman v. Lipscomb, 1 Johns. 294.

20 Bartlett v. Isbell, 31 Conn. 296. This case makes, as applied to the facts, an untenable distinction between a servant and agent. The case is really wrong, because the agent did not inquire of the holder. Harris v. Robinson, 4 How. 336. Garver v. Downie, 33 Cal. 176.

tion is obtained from such persons it may be acted upon."1 If the information received indicates a residence in some other place than where the server lives, he mails the notice accordingly. But it would not be safe to follow any other method without inquiry, such as mailing to the indorser directly to the place where the note is dated," or mailing directly to the drawer or indorser at the place where the bill is drawn. Nor if the paper is payable at a particular place, can the notice be left there or mailed to that place, without inquiry for the drawer or indorser.25

26

But the inquiry may designate a district as a county for the residence of the party to be charged without indicating his postoffice address. If the notice is mailed to the county generally, where it has more than one postoffice, or to a parish which is in the same condition," it will be insufficient. But if diligent inquiry does not develop the postoffice beyond indicating the county, the notice may be mailed to the county seat.28 But a letter should not be directed to any place without knowledge or inquiry as to their being a postoffice at the place.29 If the information derived indicates that the person to be served has a residence in the same place with the server and the place has no free-delivery system, the notice, under the rule, must be personally served; it cannot be served by mail,30 unless by force of a statute. As soon as the fact appears that the server has mailed a letter containing notice directed to the same place where it is mailed, that particular place having no free

21 Harris v. Robinson, 4 How. 336; Branch Bank v. Pierce, 3 Ala. 321, and last note.

22 Brighton Market Bank v. Philbrick, 40 N. H. 506; Beals v. Parish, 24 Barb. 243. The liability having been fixed by due diligence, the right to hold such indorser passes to every subsequent holder of the note, even though that holder was an indorser who had knowledge which the server had not.

23 See preceding section.
24 See preceding section.

25 Greves v. Tomlinson, 19 La. Ann. 90.

26 Taylor v. Bank of Illinois, 7 T. B. Mon. 576.

27 Freeman v. Wikoff, 16 La. 20.
28 Whitridge v. Rider, 22 Md. 548.
29 Tyson v. Oliver, 43 Ala. 455.
30 See § 272, ante.
31 See § 272, ante.

delivery system, the burden is thrown upon the server, at once, to show due inquiry before such mailing, and failure to ascertain information.32 But this is subject to the rule that the server may always send the notices to a particular place to be served either personally 33 or by mail," where he does not know the address. In making his inquiries to find the residence or place of business of the party to be served, in the same place where the server resides, he cannot act upon the identity of a name in the directory alone.35 He should make other inquiries. He must resort here as well to the people most likely to know the address, to the place where it is payable, if it be payable at a particular place,37 to the parties to the paper, and to the usual means of public information.39 If he cannot find the residence or place of business, he may leave the notice at the place where the paper is payable.40 If he does find the address or place of business and there be no free-delivery system, he must proceed to make personal service as indicated in a preceding section."1

38

36

Where a change of residence has taken place, inquiry should be made in the manner before indicated, to the place where the paper is payable," to the parties to the paper," to those people most likely to know," and to the usual sources of public information.45 But inquiry should be made at the last place of residence as well as the new place of residence, if it is ascertained. Where the new place of res

32 See § 272, ante. 33 See § 272, ante. 34 See § 272, ante.

35 Bacon v. Hanna, 137 N. Y. 379; Greenwich Bank v. De Groodt, 7 Hun, 210. The directory should be consulted if it is accessible, Lawrence v. Miller, 16 N. Y. 231; Cooley v. Shannon, 20 La. Ann. 548. 36 See cases in note 20, supra. 37 See cases in note 11, supra. 38 See cases in note 16, supra. Pierce v. Pender, 5 Met. 352. Or to

a party's agent. Barker v. Hall, 8 Tenn. 183.

39 The cases in the notes just cited indicate these means. See note 35, supra.

40 He needs not serve notice at all.
41 See § 272, ante.

42 See cases in note 11, supra.
43 See cases in note 16, supra.
44 See cases in note 20, supra.
45 See note 39, supra.

46 Hume v. Watt, 5 Kan. 34. The first head-note to this case ought

idence is in another place than the former, and not in the same place where the server resides, the mail will be used. If the person to be served with notice has moved into another state, notice needs not be given to him; 47 but if the party to be served has absconded 48 or has departed without leaving any address 49 or agent,50 notice to him will not be necessary. Since in all cases diligence to find is equal to a good service, it follows that, if afterward information be obtained as to the residence, notice then will not be necessary; but on this point there seems to be a doubt suggested in a certain case which is not authority.52 But even if diligence has not been used in any case, the receipt of the notice in due time by the person to be served from some one competent to give it, however irregular the means, renders the lack of diligence immaterial.53 These rules as to service are all of them modified by the right to transmit notices, and to serve them as between successive obligors upon the paper.51

§ 283. Time for service.- Subject to excuses for no notice at all, and subject to reasons for delay which are adequate, the rule as to the necessity of promptitude in giving notice is strictly held. The parties who may claim this right to prompt notice have been herein before indicated as the indorser of a note,' the drawer of a bill, the indorser of

to be put among the genuine curiosities of the law.

47 See § 281, ante, note 4.

48 Madderom v. Heath Mfg. Co., 35 Ill. App. 588; Williams v. Bank of U. S., 2 Pet. 96.

49 Williams v. Bank of U. S.. 2 Pet. 96.

53 Witeford v. Burckmeyer, 1 Gill, 127; Thomas v. Marsh, 2 La. Ann. 353; First Nat. Bank v. Wood, 51 Vt. 471; Cadillon v. Rodriguez, 25 La. Ann. 79; Matthews v. Strafford Bank, 45 N. H. 104; Moreland v. Citizens' Sav. Bank, 97 Ky. 211; Freeman v. Wikoff, 16 La. 20; Bank

50 Williams v. Bank of U. S., 2 of Columbia v. Lawrence, 1 Pet. Pet. 96.

51 Lambert v. Ghiselin, 9 How. 552; Rowland v. Howe, 48 Conn. 432.

52 Canonge v. La. St. Bank, 7 Mart. (N. S.) 583. But see Blodgett v. Durgin, 32 Vt. 361.

578.

54 See §§ 277, 278, ante.
1 See § 239, ante.
2 See § 235, ante.

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