death or imprisonment, to walk back, when let loose, to be executed or imprisoned. But the law does not undertake to establish Socratic heroism by indictment. It would not be good for society that the natural instinct for self-preservation should be made to give way to so romantic a sentiment as is here invoked; and it is a logical contradiction to say that the scaffold and the cell are to be used to prove that the scaffold and the cell are of no use. If men voluntarily submit to punishment, then compulsory punishment is a wrong. Besides this, a jailer may argue that if we hold that a prisoner is under bonds as much when he is let loose as when he is locked up, there is no reason for over-carefulhess in locking up. Following these views, the conclusion has been reached that an unresisted escape is not per se an indictable offense, and this view has been adopted by all modern German codes. The English decisions on this point may be too firmly settled to be now shaken; but considerations such as those which have been mentioned may not be without their use in adjusting the punishment on convictions for unresisted escapes."

It seems to us more reasonable to reward a prisoner for staying quietly and obediently in jail, as some States now do, than to punish him for running away. If it is cruel to punish a man for breaking jail, what shall we say of punishing his wife for aiding him?

The law is guilty of cruelty quite worthy of the inquisition in this regard. For example, an imprisoned convict went by permission of his keeper about the land connected with the jail, went to market and brought back provisions for the inmates of the jail, cooked food for them in the kitchen of the dwelling-house attached to it, went to the adjacent barn and there fed and milked the cow, and from the barn departed and left the State. Held, a criminal escape. Riley v. State, 16 Conn. 47. What a cat-and-mouse-play doctrine is this! Even if the jail is so unhealthful and filthy as to endanger his life, he is punishable for breaking out. State v. Davis, 14 Nev. 439. "The necessity, to excuse,' say the court, "must be real and urgent, and not created by the fault or carelessness of him who pleads it." He should have "exhausted the lawful means of relief in his power before attempting the course pursued. It was not shown or claimed that he had ever complained to the sheriff or the board of county commissioners, or that he had ever endeavored to obtain relief by any lawful means." Well, suppose he had complained, and his complaints had not been heeded, he could not help himself. So held in Stuart v. Board of Supervisors, 83 Ill. 341; S. C., 25 Am. Rep. 397; People v. Same, 84 Ill. 303; S. C., 25 Am. Rep. 461. In these cases there was a disclosure of frightful filth and unhealthfulness, but the Court of Chancery in the first case said the prisoner had a remedy at law, and they would not enjoin the use of the jail; and in the latter the court of law said that they could not compel the supervisors to provide a suitable jail, so long as they provided any. So the prisoner had to stay until the bugs should carry him out. It is a

comfort, however, to know that if the jail takes fire he is not bound to stay and be burned to death; 2 Whart. Crim. Law, § 1676; and that he may go to a necessary, in the yard, at night to attend a call of nature, if there are no accommodations in the jail. Pattridge v. Emmerson, 9 Mass. 122. But he cannot go for this purpose to the yard unless there is a necessary in it. McLellan v. Dalton, 10 id. 191. The two last were cases of imprisonment on civil process.

But he is bound to stay in jail even if he is innocent. So held in State v. Lewis, 19 Kans. 260; S. C., 27 Am. Rep. 113. The prisoner, awaiting trial on a criminal charge, escaped, and being rearrested, was tried and acquitted of that charge. Then they tried him for escape, and held that he could not plead his acquittal of the main charge as a defense. "He escaped before conviction,'" say the court. "When a party is in legal custody, and commits an escape, we do not think that it depends upon some future contingency whether such an escape is an offense or not." Perhaps so, if you try him for the escape first, but if it is first demonstrated that he is innocent of the main charge, and consequently had a legal right to go free, why punish him for going free without awaiting the legal demonstration? In People v. Washburn, 10 Johns. 160, the prisoner was held not indictable for aiding the escape of one indicted on suspicion of having been accessary to the breaking" of a certain house, "with intent to commit a felony," because no distinct felony was thus charged. But according to the Kansas court the escaping prisoner must have waited to have the indictment quashed.

And finally, to cap the climax of absurdity, the law holds that a prisoner has escaped when he has not actually escaped, but has the means of escape, as where, on civil process, the sheriff committed a jailer to his own jail, of which he continued to hold the keys, but where he remained. Steere v. Field, 2 Mass. 486. Under this doctrine St. Peter would have been indictable for escape, although he did not offer to go, and assured the jailor, "we are all here." So in this case the law holds the prisoner to blame for not following the instincts of nature, and availing himself of the opportunity to set himself free.

LIMITED LIABILITY OF SHIP-OWNERS.

THE

I.

'HE large number of marine disasters at sea, in waters near our coast and in our harbors, during the present year, has induced frequent reference to the United States statute limiting the liability of shipowners in such cases. Act March 3, 1851, vol. 9, p. 635, SS 1, 3, 4, 5, 7; U. S. R. S., §§ 4282-4286, 4289. A review of the decisions in this country and in England, on some of the questions that have arisen under this and similar statutes, may not be unprofitable to the profession.

By the civil law, the owner of a vessel, or exercitor, was personally bound for all the acts of the master, as well ex delicto as ex contractu, falling within the range of his authority as master. If there were several exercitors, each was bound in solide for the full amount of the obligations of the master arising ex contractu;

but for obligations ex delicto each was bound only for his part, in proportion to the interest he had in the ship. The Rebecca, Ware, 194, 195.

But Judge Ware was of opinion that so early as the compilation of the Consolato del Mare, which embodied or became the maritime law of the Mediterranean powers, the principle was established that ship-owners were not liable either for the contracts or torts of the master, beyond their interest in the vessel. Ware, 196. And by the end of the seventeenth century that principle seems to have been so generally adopted by the maritime nations of Continental Europe, as to be fairly considered a part of their general maritime law. Machlachlan on Shipping, 110; Ware, 196-198. Whether it is now modified by legislation, and if so, to what extent, we have not attempted to ascertain.

But this principle was never adopted in England until established by act of Parliament; and in the absence of any legislation on the subject, it was never doubted that the responsibility of the ship-owner was co-extensive with the loss sustained.

The first act of Parliament on the subject was passed in 1734 (7 Geo. II, ch. 15), and limited the liability of the owner to the value of the vessel and freight in case of embezzlement, etc., of the goods and merchandise on board, "or for any act, matter or thing, damage or forfeiture done, occasioned or incurred" by the master or mariners, without the privity and knowledge of the owners.

Further acts were passed for the benefit of shipowners in 1786 (26 Geo. III, ch. 86), and in 1813 (53 Geo. III, ch. 159); and these three acts were in force at the time of the passage of the act of Congress in 1851.

They were subsequently repealed, after the passage of the Merchant Shipping Act, 1854 (17 and 18 Vict., ch. 104), which was amended in 1862 by act 25 and 26 Vict., ch. 63, § 54.

The courts of the United States, from the earliest period down to the passage of the act of 1851, both in admiralty and common-law causes, while fully recognizing the limited liability allowed in Continental Europe, refused to admit it here, and held the shipowner personally for the full amount of the damage done, without regard to the value of his interest in the vessel. Del Col v. Arnold, 3 Dall. 333; The Amiable Nancy, 1 Paine, 111, 118; Pope v. Nickerson, 3 Story, 465, 480, 492; Hale v. The Washington Ins. Co., 2 id. 176; N. J. Steam Nav. Co. v. Merchants' Bank, 6 How. 344, 435.

Therefore in all cases to which the law of this country applies, the ship-owner can only exonerate himself from liability, in the cases mentioned in the statutes, by bringing himself within its terms.

The United States statute is not expressly made applicable to foreign vessels. By the terms of the English act of 1862, "the owners of any ship, whether British or foreign," are entitled to its benefit.

Under the earlier acts, which did not contain this provision, the question was much discussed, in what cases, if any, the owners of foreign vessels could take advantage of the law. The opinions and arguments of the judges will be best given in their own words.

The case of The Carl Johan, in 1821, before Lord Stowell, cited 1 Hagg. 113; 3 id. 186, was a case of collision off the coast of Norfolk, between a Swedish vessel, the Carl Johan, and a British ship. The Carl Johan was adjudged in fault, and the owners claimed the benefit of the act of 53 Geo. III, ch. 159.

According to the citation in 1 Hagg. 113, where the case was cited by counsel, before Lord Stowell himself, after alluding to the ancient rule of full responsibility of the ship-owners, he said: "But the avowed purpose of the relaxation of this rule of law was to protect the interests of those engaged in the mercantile shipping of the State, and to remove the terrors which would otherwise discourage people from embarking in the

maritime commerce of a country, in consequence of the indefinite responsibility which the ancient rule attached upon them. It was a measure evidently of policy, and established by countries for the encouragement of their own maritime interests." The court held that it was a law as to British ships but not as to foreign ships, nor for foreign owners, and that therefore the owners of the Carl Johan were not entitled to its benefits.

In the reference to the case in 3 Hagg. 186, the decision is stated to have been put upon the different ground, "that with reference to foreign vessels, the act only applied in cases where the advantages and disadvantages of such a rule were common to them and British vessels; that if all States adopted the same rule there would be no difficulty, but that no such general mutuality was alleged; that if the law of Sweden adopted such a rule, it would apply to both countries, but that Sweden could not claim the protection of that statute without affording a similar protection to British subjects in similar cases."

Perhaps each of these reports is partially correct; and Lord Stowell may have put his decision on the ground first stated, with the proviso that if it had been shown that Sweden had enacted and applied a similar law in favor of British ships, he would have allowed the Carl Johan the benefit of the act.

But it will be seen hereafter that Dr. Lushington expressly repudiated this latter doctrine, in a case where the question was directly raised, and held that the court could not administer the statute on the principle of reciprocity, without an act of Parliament or a treaty.

The case of the Carl Johan has been criticised on the ground that by a general clause, the act 53 Geo. III, ch. 159, applied only to registered British ships; as to which see the remarks of Vice-Chancellor Wood, 4 Kay & Johns. 378.

Cope v. Doherty (1858), 4 Kay & Johns. 367, arose out of a collision between two American ships on the high seas. Proceedings had been commenced against the plaintiffs' vessel in admiralty, p. 381. Thereupon they filed their bill in chancery, as allowed by the British statute, admitting their liability for the collision, but claiming to have it limited to the value of their ship and its freight. Several of the defendants demurred to the bill, and some of the defendants, who demurred, were British subjects.

Vice-Chancellor Sir W. Page Wood said: "In construing any act of the Legislature, the verbal construction of the particular section in question, if it be plain and simple, must govern the court in arriving at its conclusion. If there be any degree of doubt or difficulty upon the wording of the particular section in question, the court is entitled to look, first at the circumstances attending the passage of the act, next at the preamble, so far as it affords any indication which may serve as a key to the interpretation of the act, and then, I may add, to the whole purport and scope of the act, to be collected from its various clauses, other than the particular clause, the meaning of which is in dispute.

"Now as regards the construction of the particular section here in question, I apprehend there can be no doubt, that if we were simply dealing with an act of our own Legislature, relating to shipping, there would be a clear presumption a priori that the act referred simply to the ships of our own country, it being the plain and obvious rule, in construing the enactments of any Legislature, that the Legislature of each independent country must be supposed to deal with those subject-matters which are within its own control and jurisdiction. As Dr. Lushington expresses it, in the case of The Zollverein, 2 Jur. (N. S.) 429, 'in looking to an act of Parliament with reference to such a question as I am now discussing, viz., as to whether it is in

tended to apply to foreigners or not, I should, in endeavoring to ascertain the construction of the act, always bear in mind the power of the British Legislature; for it is never to be presumed, unless the words are so clear that there can by no possibility be a mistake, that the British Legislature exceeded that power, which according to the law of the whole world properly belonged to it. The power of this country is to legislate for its own subjects all over the world and as to foreigners within its jurisdiction, but no further. Prima facie, therefore, it would not be the true construction of the clause presented for my consideration that it is applicable to foreign ships on the high seasmatters in themselves entirely beyond the jurisdiction and scope of the Legislature of this country.'

"However, there are other clauses of this act of Parliament by which foreign vessels may occasionally be affected, and which may make it advisable to call in aid those additional guides to which I have referred for arriving at the true construction, namely, the general circumstances under which the act was passed, and the preamble of the act."

After showing that the preamble which recited merely that "it is expedient to amend and consolidate the acts relating to merchant shipping," shed little or no light on the question, and referring to the decision of Lord Stowell in The Carl Johan, the vice-chancellor proceeds:

"The general law, however, which is there laid down by Lord Stowell, seems to me to be very material in coming to a conclusion as to the object of the present statute, framed as it is by way of consolidation of the law as it existed when the act was passed."

He then argues that the general law, or law of nations, with regard to injuries of this description, has provided for full compensation to the injured party; and that a construction of the statute which would restrict the rights of foreign owners under this general law, whenever run down by a British ship upon the high seas, would be the last construction he ought to adopt.

As regards this part of the opinion, it is to be remarked that unless it has reference to the "general law" as administered in British courts, and the rights of foreigners therein, it seems to be founded on a misapprehension, the general maritime law on the conti'nent being different, as we have seen.

After showing how unjustly such a construction of the act might operate against nations with a small marine and employing a small class of vessels, the vicechancellor proceeds to consider the application of various other provisions of the Merchant Shipping Act to foreign vessels. He then says:

"In the case before me it is damage done by one American ship to another American ship on the high seas. Now hitherto I have considered only the question as between a ship of this country and a ship of a foreign country. Even in such a case, it appeared to me, as I have said, that it would be beyond the province of the Legislature of this country, and unreasonable and inequitable to legislate; but to suppose that the Legislature of this country had it in contemplation to restrict the natural rights I have referred to as between two ships, both belonging to foreign countries, on the high seas, would be still more startling than to presume that it intended to deal with foreigners in a case where those who are affected by the act of such foreigners are British subjects, and amenable therefore to the acts of the Legislature." P. 383.

"It was contended upon this part of the case that the lex fori should prevail upon those general grounds upon which the lex fori has been held to operate. But it is clearly laid down by Dr. Lushington in the case of The Zollverein, citing with approbation Mr. Justice Story's work on the subject (Confl. of Laws, 558), that although the lex fori has application to every thing

concerning the form of the procedure with regard to the substance of the proceeding, it has no application whatever. And clearly an act which limits the damages to which the ship-owner is to be liable, under circumstances like the present, deals with the substance and not the form of the procedure."

The opinion concludes: "I have not commented upon what was alleged in the argument in support of the bill, that the American law is identical with our own upon the point in question, because that is not averred upon the bill, and not being averred, I cannot take cognizance of it. If that were averred and proved, a case of a different description might arise between the plaintiffs and such if any of the defendants as may be Americans. I should be competent to administer American law between Americans coming here for relief.

"As regards such of the defendants who have demurred, as are English, it will be useless to amend; for as against them no amendment will better the plaintiff's case. ** ** As regards such of them as are English I entertain no doubt.'

The demurrer being allowed, the plaintiffs appealed, and after argument the appeal was dismissed by the lords justices. 2 De Gex & Jones, 614.

Knight Bruce, L. J., said he was of opinion, considering the state of the law of England immediately before the passing of the act, and considering the context, that the court ought not to construe the “limited liability sections as applying to the case. He expressly declined to say whether the plaintiffs would have been right or wrong if one of the two ships had been British, or if the collision had happened in a British river or port."

Turner, L. J., said: "The words of these sections are no doubt wide and extensive. * * * But it is not because general words are used in an act of Parliament, every case which falls within the words is to be governed by the act. It is the duty of courts of justice so to construe the words as to carry into effect the meaning and intention of the Legislature."

"This is a British act of Parliament and it is not, I think, to be presumed that the British Parliament could intend to legislate as to the rights and liabilities of foreigners. In order to warrant such a conclusion, I think that either the words of the act ought to be express, or the context of it ought to be very clear."

"Another consideration, which, as it seems to me, bears strongly upon the general words of these sections of the act, is, I think, furnished by considering the source from which these sections are derived. They are plainly taken from 53 Geo. 3, ch. 159, and the prior acts on which that statute was founded, and those acts had, before the passing of this act, been decided not to apply to foreign rights. The Legislature cannot be supposed to have been ignorant of that decision at the time this act was passed, and it cannot, I think, be imputed to it, that with that knowledge it intended to alter the law on this important question without some more definite expression of that intention.

"But what seems to me to be more decisive upon the subject is the context of the act. If the 504th section (corresponding to § 4283, U. S. Rev. Stats.), reaches the case of a collision between foreign vessels owned by foreigners, the 503d section (see § 4281, U. S. Rev. Stats.) must also reach that case, and then we must suppose that the British Parliament meant by this act to legislate upon the questions what should be inserted in the bills of lading of foreign shippers and what should be declared by them to the masters of the vessels on board which their goods were shipped." "An attempt was made on the part of the appellants to bring this case within Don v. Lipman, and cases of that class (on the lex fori); but I think those cases have no bearing upon the point. This is a question of liability, and not of procedure."

The case of The Wild Ranger, 32 L. J., Adm. 49 (1862), arose out of a collision on the high seas between the American ship Wild Ranger and the British ship Coleroon. The Wild Ranger was held solely to blame for the collision. The owners of that ship thereupon claimed a limited liability not only under the act of Parliament, but also under the act of Congress of 1851. It does not appear to have been alleged in the bill that the benefit of the latter act was extended to foreigners, although that position was taken in the argument.

Dr. Lushington said that the first question was as to the right of the owners of the American ship, under the circumstances of the case, to the benefit of section 504 of the Merchant Shipping Act of 1854, and that it was not directly governed by any decided case. He referred at length to the opinion of Lord Stowell in The Carl Johann, as cited in 3 Hagg. 186, to the effect that if Sweden adopted such a rule as the British statute it would apply to both countries, and said: "Now, if that presumption is to be taken as true, as laid down by Lord Stowell, it certainly goes a very considerable length in supporting the claim which has been preferred to limited liability on the present occasion. But I cannot assent to that opinion, nor do I believe, that if that case had been fully reported, Lord Stowell meant in reality to lay down, for the reasons I am about to state, any such doctrine at all; but I at once think it right to say most distinctly that to that doctrine I cannot assent."

After reviewing the previous decisions he said: "It is right to bear in mind the position of Lord Stowell it is undenied on all hands- viz., that the ancient law was that of unlimited liability; and then the question arises, by what authority that ancient law can be altered, and whether it has been altered by any authority which the court is bound to obey. * * I know

--

*

of no authority - and I apply this observation more particularly to what is said to have fallen from Lord Stowell in the case of The Carl Johan- by which the ancient law could be changed save by an act of Parliament.

"Now as to the statute in question and the 504th section of it (see § 4283, U.S. Rev. Stats.), it is obvious that this section refers, or may refer, to collisions on the high seas; and upon the present occasion the collision in question took place upon the high seas. The presumption of law, as established by the case of Cope v. Doherty, is that the British Parliament never intended to legislate for foreigners on the high seas. Now what difference does it make that the collision took place with a British ship? How can it be said that the statute shall be so construed that limited liability shall be refused to the wrong-doer of two foreign ships and granted to the wrong-doer of one foreign ship in collision with a British vessel? There is nothing whatsoever in the statute itself that I can discover which sanctions or even permits such mutable construction. The statute applies to all foreign ships on the high seas or to none. To draw a distinction between the collision of a foreign ship with a foreigner, or with a British ship on the high seas is, so far as the construction of the statute is concerned, purely arbitrary. On what ground can such a proposition be maintained? On the ground that if cæteris paribus, the British ship had been the delinquent, her owner would have been entitled to unlimited liability? On this point let me advert to The Iron Screw Co. v. Schurrman. ViceChancellor Wood says: 'I still adhere to the opinion which I expressed in Cope v. Doherty, that a foreign ship meeting a British ship on the open ocean cannot properly be abridged of her rights by any act of the British Legislature;' so that a foreign ship meeting a British ship on the ocean, and the British ship being to blame, no limited liability can be claimed by the British ship if the opinion of Vice-Chancellor Wood

be correct. The actual case has not occurred, so there is no need for me to express any opinion upon it. There is no authority whatever for the construction of the statute now prayed.

"It is right, however, that I should notice the argument founded upon the doctrine of reciprocity. It is said that the United States have passed a law whereby in cases of collision, the delinquent ship or its owner, being British, is entitled to the benefit of limited liability; that therefore this court ought in a similar case occurring here to an American vessel, to grant the same privilege. Now this is apparently a very equitable proposition to do as you have been done by. But consider what this court is asked to do. By the ancient law this court was bound to enforce liability to the extent of the injury. How was this law altered? By act of Parliament in certain cases. True; if the statute empowers me to grant the application, well and good; if it does not, I want to know by what authority I could do so. Can it be contended that the act of Parliament - my sole authority for limited responsibility - is of that flexible nature that it does not authorize me to permit limited liability in any case of given circumstances per se; but if you had the fact that the nation to whom the suitor belongs ordains limited liability, I am to put a different construction upon the words of the statute itself? I am utterly at a loss to conceive how such a proposition can be maintained. The Instance Court of Admiralty is a municipal court. It is widely distinguished from a court of admiralty acting under a prize commission. In the latter case there is a much wider discretion and greater powers are conferred. But in the Instance Court what authority have I to deal with an act of Parliament beyond carrying it into execution according to its legitimate construction? And such, in my opinion, is my sole duty. But were I disposed to part from this positionand assuredly I am not-would either the authorities or the facts support me in so doing?

"In my argument I have assumed that the American law would give limited liability to a British vessel if placed in similar circumstances in an American court. I have assumed the American law to be so, but I must not be understood to have declared an opinion that such law has been clearly and satisfactorily proved in this case.

"I am under the necessity of refusing this application."

In General Iron Screw Collier Company v. Schurmanns, 1 Johns. & Hemm. 180 (1860), the plaintiffs were registered owners of the British ship William Hutt, which came into collision with the Dutch ship Sophie, owned by natives of Holland, about two and a half miles from Dungeness Point. The plaintiffs claimed a limited liability, it having been adjudged in admiralty that their vessel was solely in fault.

Vice-Chancellor Wood, in his judgment, cited with approval the opinion of Dr. Lushington in the case of The Zollverein, that "the power of this country is to legislate for its own subjects all over the world, and as to foreigners within its jurisdiction, but no further," and said, "that is a very neat and precise statement of the principle on which acts of the Legislature ought to be interpreted." P. 192.

"With respect to foreign ships I still adhere to the opinion which I expressed in Cope v. Doherty-that a foreign ship meeting a British ship on the open ocean cannot properly be abridged of her rights by any act of Parliament." P. 193.

He then refers to the principles established in the law of nations that for certain purposes every country may legitimately exercise jurisdiction over the high seas within three miles from its shores, and says, that in dealing with so large a subject as that embraced in the Merchant Shipping Act, the natural desire of the Legislature would be to exert all the jurisdiction which it

could assert with a due regard to the rights of other nations; that the jurisdiction within the three-mile limit lawfully extended to the subject-matter of the 504th section of the act. He appears to have conceded that the benefit of that section did not extend to a foreign ship within the three-mile limit, and to the objection of this want of reciprocity he answered that if the matter were duly brought to the attention of the Legislature some enactment might possibly be passed to remedy the alleged grievance. "On the other hand it is important to look at the declared object of all this series of statutes, namely, the advancement of British shipping and the encouragement of commerce; and certainly the benefit of limited liability would be greatly diminished if the act were held not to apply to a collision between British and foreign ships in that portion of the sea within three miles of the shore, where collisions would be most likely to occur." J. F. MOSHER.

NOTICE BY MAIL OF DISHONOR OF BILL.

NEBRASKA SUPREME COURT, JULY 21, 1880.

FORBES V. OMAHA NATIONAL BANK.

Where an indorser or other person entitled to notice of the dishonor of a negotiable instrument resides within the same post-office delivery with the one whose duty it is to give the notice, then the notice must be served or left at the residence or place of business of the one entitled to it, and the notice can be sent by mail only in case the one to be notified resides nearest to or is in the habit of receiving his mail inatter at another post-office than the one from which such notice is sent.

ACTION upon a promissory note, by the Omaha

National Bank against R. M. Forbes and another. Sufficient facts appear in the opinion. From a judgment in favor of plaintiff below a writ of error was taken.

George W. Doane, for plaintiff in error.

E. Wakeley, for defendant in error.

Совв, Ј. Several questions are presented by the record in this case, but as one of them appears to me to quite overshadow the others in point of importance, and the conclusion reached in its examination being decisive of the case, I deem it unimportant to consider the others. The District Court found "that the said Samuel Hawver and R. M. Forbes were respectively duly notified of such presentment, non-payment, and refusal, and that the plaintiff would look to them respectively for payment of the same, with damages and costs; that at the time of such presentment and notification the said R. M. Forbes resided about one mile or one and a quarter miles outside of the corporate limits of the city of Omaha, in the State of Nebraska, where the said bank was situated and did business and said draft was payable, and where the notary hereinafter mentioned resided, and that said R. M. Forbes had no regular or usual place of business in said city; that the post-office at which he then obtained his mail was the post-office in the city of Omaha, which was the nearest post-office to his residence, and about three miles therefrom; that on the evening of October 23, 1871, when the note was presented for payment, one William Wallace, a notary public and agent of the plaintiff's bank, deposited in the post-office at Omaha notice in due form of the presentment and dishonor of said draft, and that plaintiff would look to him for payment thereof, directed to the said R. M. Forbes, at the post-office in Omaha, with the postage thereon paid."

Thus, while the court finds that the said Samuel Hawver and R. M. Forbes were respectively duly

notified of such presentment, non-payment, refusal, etc., it does not fail to put us in possession of the facts upon which it bases such finding, so far as the plaintiff in error is concerned, and the question whether such facts do sustain the finding that the plaintiff in error was duly notified, is in my opinion the controlling one in this case.

While the evidence of the fact of the depositing of the notice in the post-office is not by any means clear, yet as the same was deemed sufficient by the trial court, I will confine my examination to the question whether such fact, taken in connection with the collateral facts and circumstances surrounding this case, constitutes legal notice. This question has often been before the courts of several of the States of the Union, and once before the Supreme Court of the United States. It has not been previously brought before this court, and as the views and decisions upon it of the several State and Federal courts are altogether conflicting and irreconcilable, this court should be free to decide it in this case as may seem most likely to meet with the ends of justice, and at the same time establish a precedent the least liable to lead to unfairness or abuse.

The question may be fairly stated thus: whether, where the drawer or indorser of a draft, note, or bill of exchange resides outside of the corporate limits of a city or village, which is the place of dishonor of such draft, note, or bill of exchange, but nearer to the postoffice in such city or village than to any other postoffice, notice of the dishonor of such draft, note, or bill of exchange can be legally given to such drawer or indorser by depositing the same in such post-office, directed to such drawer or indorser.

In the case of Ireland v. Kip, which was twice before the Supreme Court of New York (10 Johns. 490, in 1813, and 11 id. 231, in 1814), it was held that where the indorser to be charged resided at Kip's Bay, within the corporate limits of New York city, but outside of the compact portion of the city, and where the letter carriers did not deliver letters, but had a place of business on Frankfort street, within the compact part of the city, where he had directed the letter carriers to leave all of his letters, and the notice of dishonor was put into the post-office in New York city, directed to the indorser, at his place of business on Frankfort street, the same was not sufficient notice of the dishonor of the bill to charge the indorser. In the opinion the court uses this language: "The invariable rule with us is that when the parties reside in the same city or place, notice of the dishonor of bills or notes must be personal, or something tantamount, such as leaving it at the dwelling-house or place of business of the party, if absent. If the party to be served by a notice resides in a different place or city, then the notice may be sent through the post-office to the post-office nearest the party entitled to the notice."

The authority of this case has never been shaken. But unfortunately, when the courts came to apply it to cases like the one at bar they separated widely; the Supreme Courts of New York, Connecticut, Massachusetts, Maine, Louisiana and Tennessee holding in effect that the words "city or place," as used by the court in Ireland v. Kip, should be understood as meaning the place in fact rather than in law, and that the indorser or maker, entitled to notice of dishonor, must be served personally, or by leaving the notice at his residence or place of business, unless he resides nearer to some other post-office, in which case notice may be sent to him by mail. Say the court, per Bronson, J., in Babcock v. Benham, 4 Hill, 129, "the post-office is not a place of deposit for notices to indorsers, except when the notice is to be transmitted by mail to another office." In Ransom v. Mack, 2 Hill, 587, the same judge, in delivering the opinion of the court, uses the following language: "The corporation limits of our