June, 1834. EASTERN DIST. was presented for payment, protested, and due notice thereof given to the endorsers, who have all become liable for the payment thereof. He prays judgment accordingly. PRESTON 28. DAYSSON ET ALS. Madame Daysson alone made a defence. She admitted her endorsement on the note, pleaded the general issue, and denied specially, having ever received notice of protest. The note and protest were given in evidence. The protest bears date the 26th November, 1833, and the certificate of the notary, also in evidence, states that he notified the defendant (veuve Daysson) of the protest by letter addressed to her, dated on the day of said protest, and served on her this day, by depositing the same in the post-office in this city, directed to her, not having been able to find her, after due and diligent inquiry. Parole evidence was given to rebut the presumption in the notary's certificate of due diligence being used, without effect, to find the defendant's residence. The notary did not make the inquiry himself. One of his clerks was sent with the notice. He swears he called at the store of the drawer and the payee and endorser of the note, but could not obtain information of the residence of Madame Daysson, to deliver the notice. On reporting this fact to the notary, he was directed to deposit the notice in the city post-office, directed to her, in pursuance of the act of 1827, p. 76. D. Seghers, witness for defendant, says that Mr. Tricou, who negotiated the note, and whose name was endorsed on it, was well acquainted with Madame Daysson's residence, and could easily have pointed it out to the notary. It is in evidence that defendant's husband kept a store, and this note was taken by her in payment of goods sold at private sale of her husband's succession. The note fell due the 26th November, 1833; notice was due to her next day. She was verbally informed on the 30th November of the protest, and received the written notice on the 2d December. The district judge was of opinion that due diligence was not used to obtain the necessary information of the defendant's residence, and gave judgment in her favor. The plaintiff appealed. June, 1854. PRESTON Preston, in propriâ personâ, and for appellee. We have EASTERN DIST. shown that due diligence was used to ascertain the place of defendant's residence, but in vain; but being sued as endorser, she was duly notified of the dishonor of the note, through DAYSSON ET ALS. the post office. See act of 1827, 1 Moreau, Digest, p. 96. 2. Neither the plaintiff or defendant were merchants, and could suffer no damage by a delay of six days, in receiving notice of the dishonor of the note. 3. The defendant, in consequence of the death of her husband, had rented out the ground floor, and retired from business into the upper story of her house, where her residence was unknown. Her business was all in charge of an agent, and she not known (being a woman,) to any but her agent or lawyer. 4. Notice through the post-office should be liberally construed, in a large city where there is such a heterogeneous, and so dense a population as in New-Orleans, in which our next door neighbor is often a stranger to us; while the love and pleasure of literary correspondence, lead us constantly to the post-office for every kind of intelligence. J. Seghers, contra, contended, that the notice in this case is insufficient. The sufficiency of notice sent by mail, is well established, when the person to be charged, resides in a different town or place, from that in which the note was presented for payment. But when he resides in the same place, notice must be personal, or left at his residence or place of business; depositing it in the post-office, is insufficient. Bayley on Bills, ed. 1826, p. 178, note a. 2. When the party resides in the place where payment is demanded, notice of the dishonor must be given to him, at farthest, on the day following that of protest or dishonor. To those who reside elsewhere, it must be sent by the post. on that or the following post day. 11 Martin, 452. Bayley on Bills, 171. 3. When a party's residence is unknown, due diligence must in general, be used to find it out. Inquiry should be made of some of the other parties to the note. Bayley, 180, 181. EASTERN DIst. PRESTON DAYSSON ET ALS. 4. In this case the notary did not use due diligence, nor did he make inquiry as he should have done. 5. The third section of the act of 1827, does not apply to parties residing in the same place where the demand and dishonor of the bill takes place. It provides that the notary shall use all due diligence to obtain the necessary information as to residence of the party to be notified, which, in this case, he has not done. Bullard, J. delivered the opinion of the court. This suit is brought by the holder of a promissory note, against the endorsers; and the plaintiff alleges a regular demand of the drawer, protest for non-payment, and due notice to the defendant as endorser. The defendant denies all the facts in the petition, except her signature, and she specially denies having received notice of protest. In support of the allegation that the defendant had been duly notified of the demand, and non-payment, the plaintiff gave in evidence, a notarial protest, in the usual form, with a certificate of the notary public thereto annexed, stating the manner in which the notices had been given to the other parties to the note. After stating in what manner the other endorsers had been notified, the notary says, that the defendant was notified "by depositing the one (letter) for veuve Daysson in the post-office in this city, directed to her, not having been able to find her, after due and diligent inquiry." The effect we are to give to this certificate, as evidence of notice, depends on the construction of the act of the legislature, of the 13th March, 1827, entitled "an act to amend an act concerning protests of bills of exchange, and promissory notes," &c. The first section of this act, provides "that all notaries, or persons acting as such, are authorised in their protests of bills of exchange, promissory notes or orders, for the payment of money, to make mention of the demand made upon the drawer, acceptor, or person on whom such order or bill of exchange is drawn or given, and of the manner or circum PRESTON According to the act of the legislature passed the 13th March, 1827, concerning protests of bills and notes, when ever the notary sidence of the party intended notice, he is unable to find it, and has lodged such nearest post-office, addressed same to him at the place where the was stances of such demand, and his certificate added to such EASTERN DIST. June, 1834. protest, to state the manner in which such notices of protest, to drawers, endorsers, or other persons interested were served or forwarded, and whenever they shall have so done, a certified DAYSSON ET ALS. copy of such certificate and protest, shall be evidence of all the matters therein contained." The third section provides, that "whenever the residence of any such drawer, acceptor, endorser or others, shall be unknown to the notaries or others acting as such, and whenever, after using all due diligence to obtain the necessary information thereon, the said residence certifies that af ter diligent inshall not have been found by said notaries or others, acting as quiry for the resuch, then, and in that case, it shall be the duty of such notary or others acting as such, to put the notices of such to be charged by protest in the nearest post-office, where such protest was made, addressed to such drawer, acceptor, endorsers or others, the notice in the at the place where it shall appear by the face thereof, bill of exchange or promissory note was drawn, and the shall be deemed and considered as legal notice of such contract protest." Whatever we may think of the policy of this act, as an personal notice. innovation on commercial usages, we are bound to give effect stated in the notary's certificate, to it, according to its true construction. We think the legis- that due dili lature intended to declare, that whenever the notary certified gene was used by him to find that after diligent inquiry for the residence of the party the residence of intended to be charged by notice, he could not find it, a notice had been lodged in the nearest post-office, addressed to him, at the place where the contract was made, it should be deemed equivalent to personal notice. Of the fact that such must be taken as diligence was used, and such notice was deposited in the prima facie evipost-office, the certificate of the notary must be taken as primâ facie evidence. The nature and degree of that dili- ligence used by the notary to find gence may be inquired into, and if it should appear that in the residence of point of fact, the notary did not use due diligence to obtain the party on the necessary information, then the presumption arising from to be served, may be inquired his official certificate, will yield to the contrary proof. The into, and if in question, therefore is, whether the evidence offered by the point of fact he made, it is deemed equivalent to Of the fact the party but in vain, and of the notice being deposited in the post-office, the certificate itself dence. The nature and degree of the di whom notice is did not use due parties, shows a want of diligence on the part of the notary diligence to ob to find the residence of the endorser. tain the necessary information EASTERN Dist. PRESTON The notary who was sworn as a witness, deposed, "that he did not make the inquiries for the domicil of Madame Daysson himself, nor did he deposit the notice of protest in DAYSSON ET ALS. the post-office. That it was done by a clerk of his. That then the pre- he is regular in sending all notices of protest to the post-office, sumption arising from his official when the persons to whom they are directed, cannot be found certificate will yield to contrary on the day after the protest is made. proof. The notary's clerk, F. B. Vinot, deposed, that he was employed to deliver the notices of protest to the different endorsers, and did so as stated in the certificate. That he made inquiry at the store of the drawer, and at that of the other endorsers, for the domicil of Madame Daysson, in order to deliver the notice of protest to her, but the persons in the house could not tell him where she lived. He reported this to Mr. Christy, who directed him to put the letter directed to Madame Daysson, into the post-office. On his cross examination, the witness stated, that he had no distinct recollection of putting this letter into the post-office, for Madame Daysson. Mr. Christy being re-examined, says, that he has a distinct recollection of giving the written notice of protest of the note sued on, along with others, to Vinot, in order to be put into the post-office. On the other hand, S. Borel, the agent of the defendant, testified that the defendant resides in Royal-street, where she has lived for eighteen months; that she lived previously in Maine-street; that she does not now keep a store; her husband formerly kept a store, and died there; that she had hired out the room on the ground floor, and lives in the second story. He takes the defendant's letters out of the post-office for her; he took out the letter No. 1, on the 2d December; he had been at the office the day preceding inquiring for letters for the defendant, but there was none for her. He had no knowledge of her receiving any other notice, than that received on the 2d December. The notice in the record, is dated November 26, 1833, and Vinot swears that it was put into the post-office on the same day. If that be true, it is of no importance at what period it reached defendant, provided due diligence had been used to |