« PreviousContinue »
death or imprisonment, to walk back, when let loose, comfort, however, to know that if the jail takes fire to be executed or imprisoned. But the law does he is not bound to stay and be burned to death; 2 not undertake to establish Socratic heroism by in- Whart. Crim. Law, $ 1676; and that he may go to dictment. It would not be good for society that a necessary, in the yard, at night to attend a call of the natural instinct for self-preservation should be nature, if there are no accommodations in the jail. made to give way to so romantic a sentiment as is Pattridge v. Emmerson, 9 Mass. 122. But he cannot here invoked; and it is a logical contradiction to go for this purpose to the yard unless there is a say that the scaffold and the cell are to be used to necessary in it. McLellan v. Dalton, 10 id. 191. prove that the scaffold and the cell are of no use. The two last were cases of imprisonment on civil If men voluntarily submit to punishment, then com- process. pulsory punishment is a wrong. Besides this, a But he is bound to stay in jail even if he is innojailer may argue that if we hold that a prisoner is cent. So held in State v. Lewis, 19 Kans. 260; S. under bonds as much when he is let loose as when C., 27 Am. Rep. 113. The prisoner, awaiting trial he is locked up, there is no reason for over-careful- on a criminal charge, escaped, and being rearrested, hess in locking up. Following these views, the con- was tried and acquitted of that charge. Then they clusion has been reached that an unresisted escape tried him for escape, and held that he could not is not per se an indictable offense, and this view has plead his acquittal of the main charge as a defense. been adopted by all modern German codes. The “He escaped before conviction,'” say the court. English decisions on this point may be too firmly “When a party is in legal custody, and commits an settled to be now shaken; but considerations such escape, we do not think that it depends upon some as those which have been mentioned may not be future contingency whether such an escape is an without their use in adjusting the punishment on offense or not.” Perhaps so, if you try him for the convictions for unresisted escapes.'
escape first, but if it is first demonstrated that he is It seems to us more reasonable to reward a pris- innocent of the main charge, and consequently had oner for staying quietly and obediently in jail, as a legal right to go free, why punish him for going some States now do, than to punish him for running free without awaiting the legal demonstration ? In away. If it is cruel to punish a man for breaking People v. Washburn, 10 Johns. 160, the prisoner was jail, what shall we say of punishing his wife for aid- held not indictable for aiding the escape of one ining him?
dicted “on suspicion of having been accessary to The law is guilty of cruelty quite worthy of the the breaking” of a certain house, “with intent to inquisition in this regard. For example, an impris-commit a felony,” because no distinct felony was oned convict went by permission of his keeper thus charged. But according to the Kansas court about the land connected with the jail, went to the escaping prisoner must have waited to have the market and brought back provisions for the inmates indictment quashed. of the jail, cooked food for them in the kitchen of And finally, to cap the climax of absurdity, the the dwelling-house attached to it, went to the adja- law holds that a prisoner has escaped when he has cent barn and there fed and milked the cow, and not actually escaped, but has the means of escape, from the barn departed and left the State. Held, a as where, on civil process, the sheriff committed a criminal escape. Riley v. State, 16 Conn. 47. What jailer to his own jail, of which he continued to hold a cat-and-mouse-play doctrine is this ! Even if the the keys, but where he remained. Steere v. Field, 2 jail is so unhealthful and filthy as to endanger his Mass. 486. Under this doctrine St. Peter would life, he is punishable for breaking out. State v. have been indictable for escape, although he did not Davis, 14 Nev. 439. “The necessity, to excuse,
offer to go, and assured the jailor, “we are all here." say the court,
"must be real and urgent, and not So in this case the law holds the prisoner to blame created by the fault or carelessness of him who for not following the instincts of nature, and availpleads it.” He should have “exhausted the lawful ing himself of the opportunity to set himself free. means of relief in his power before attempting the course pursued. It was not shown or claimed that
LIMITED LIABILITY OF SHIP-OWNERS. he had ever complained to the sheriff or the board of county commissioners, or that he had ever en
I. deavored to obtain relief by any lawful means.
THE Well, suppose he had complained, and his com
PIE large number of marine disasters at sea, in
waters near our coast and in our harbors, during plaints had not been heeded, he could not help him- the present year, has induced frequent reference to the self. So held in Stuart v. Board of Supervisors, 83 United States statute limiting the liability of shipIll. 341; S. C., 25 Am. Rep. 397; People v. Same,
owuers in such cases. Act March 3, 1851, vol. 9, p. 635, 84 Ill. 303; S. C., 25 Am. Rep. 461. In these cases
$81, 3, 4, 5, 7; U. S. R. S., $$ 4:28:2-4286, 4289. A review
of the decisions in this country and in England, on there was a disclosure of frightful filth and unhealth
some of the questions that have arisen under this and fulness, but the Court of Chancery in the first case similar statutes, may not be unprofitable to the prosaid the prisoner had a remedy at law, and they fession. would not enjoin the use of the jail; and in the By the civil law, the owner of a vessel, or exercitor, latter the court of law said that they could not com
was personally bound for all the acts of the master, as
well ex delicto as ex contractu, falling within the range pel the supervisors to provide a suitable jail, so
of his authority as master. If there were several long as they provided any. So the prisoner had to exercitors, each was bound in solide for the full amount stay until the bugs should carry him out. It is a of the obligations of the master arising ex contractu ;
but for obligations ec delicto each was bound only for maritime commerce of a country, in consequence of his part, in proportion to the interest he had in the the indefinite responsibility which the ancient rule ship. The Rebecca, Ware, 194, 195.
attached upon them. It was a measure evidently of But Judge Ware was of opinion that so early as the policy, and established by countries for the encouragecompilation of the Consolato del Mare, which embodied ment of their own maritime interests." The court or became the maritime law of the Mediterranean held that it was a law as to British ships but not as to powers, the principle was established that ship-owners foreign ships, nor for foreign owners, and that therewere not liable either for the contracts or torts of the fore the owners of the Carl Johan were not entitled to master, beyond their interest in the vessel. Ware, 196. its benefits.
And by the end of the seventeenth century that In the reference to the case in 3 Hagg. 186, the deprinciple seems to have been so generally adopted by cision is stated to have been put upon the different the maritime nations of Continental Europe, as to be ground, "that with reference to foreign vessels, the fairly considered a part of their general maritime law. act only applied in cases where the advantages and Machlachlan on Shipping, 110; Ware, 196–198. Whether disadvantages of such a rule were common to them and it is now modified by legislation, and if so, to what ex- British vessels; that if all States adopted the same tent, we have not attempted to ascertain.
rule there would be no difficulty, but that no such But this principle was never adopted in England general mutuality was alleged; that if the law of until established by act of Parliament; and in the Sweden adopted such a rule, it would apply to both absence of any legislation on the subject, it was never countries, but that Sweden could not claim the prodoubted that the responsibility of the ship-owner was tection of that statute without affording a similar proco-extensive with the loss sustained.
tection to British subjects in similar cases." The first act of Parliament on the subject was passed Perhaps each of these reports is partially correct; and in 1734 (7 Geo. II, ch. 15), and limited the liability of Lord Stowell may have put his decision on the ground the owner to the value of the vessel and freight in case first stated, with the proviso that if it had been shown of embezzlement, etc., of the goods and merchandise that Sweden had enacted and applied a similar law in on board, “or for any act, matter or thing, damage or favor of British ships, he would have allowed the Carl forfeiture done, occasioned or incurred” by the mas- Johun the benefit of the act. ter or mariners, without the privity and knowledge of But it will be seen hereafter that Dr. Lushington the owners.
expressly repudiated this latter doctrine, in a case Further acts were passed for the benefit of ship- where the question was directly raised, and held that owners in 1786 (26 Geo. III, ch. 86), and in 1813 (53 Geo. the court could not administer the statute on the prinIII, ch. 159); and these three acts were in force at the ciple of reciprocity, without an act of Parliament or a time of the passage of the act of Congress in 1851. treaty.
They were subsequently repealed, after the passage The case of the Carl Johan has been criticised on the of the Merchant Shipping Act, 1854 (17 and 18 Vict., ground that by a general clause, the act 53 Geo. III, ch. 104), which was amended in 1862 by act 25 and 26 cb. 159, applied only to registered British ships; as to Vict., ch. 63, $ 54.
which see the remarks of Vice-Chancellor Wood, 4 The courts of the United States, from the earliest Kay & Johns. 378. period down to the passage of the act of 1851, both in Cope v. Doherty (1858), 4 Kay & Johns. 367, arose out admiralty and common-law causes, while fully recog- of a collision between two American ships on the high nizing the limited liability allowed in Continental seas. Proceedings had been commenced against tho Europe, refused to admit it here, and held the ship- plaintiffs' vessel in admiralty, p. 381. Thereupon they owner personally for the full amount of the damage filed their bill in chancery, as allowed by the British done, without regard to the value of his interest in the statute, admitting their liability for the collision, but vessel. Del Col v, Arnold, 3 Dall. 333; The Amiable claiming to have it limited to the value of their ship Nancy, 1 Paine, 111, 118; Pope v. Nickerson, 3 Story, and its freight. Several of the defendants demurred 465, 480, 492; Hale v. The Washington Ins. Co., 2 id. to the bill, and some of the defendants, who demurred, 176; N. J. Steam Nav. Co. v. Merchants' Bank, 6 How. were British subjects. 314, 435.
Vice-Chancellor Sir W. Page Wood said: “In conTherefore in all cases to which the law of this country struing any act of the Legislature, the verbal construcapplies, the ship-owner can only exonerate himself tion of the particular section in question, if it be plain from liability, in the cases mentioned in the statutes, aud simple, must govern the court in arriving at its by bringing himself within its terms.
conclusion. If there be any degree of doubt or diffiThe United States statute is not expressly made culty upon the wording of the particular section in applicable to foreign vessels. By the terms of the question, the court is entitled to look, first at the cirEnglish act of 1862, “the owners of any ship, whether cumstances attending the passage of the act, next at British or foreign,” are entitled to its benefit.
the preamble, so far as it affords any indication which Under the earlier acts, which did not contain this may serve as a key to the interpretation of the act, and provision, the question was much discussed, in what then, I may add, to the whole purport and scope of the caser, if any, the owners of foreign vessels could take act, to be collected from its various clauses, other than advantage of the law. The opinions and arguments the particular clause, the meaning of which is in of the judges will be best given in their own words. dispute.
The case of The Carl Johan, in 1821, before Lord “Now as regards the construction of the particular Stowell, cited 1 Hagg. 113; 3 id. 186, was a case of col- section here in question, I apprehend there can be no lision off the coast of Norfolk, between a Swedish ves- doubt, that if we were simply dealing with an act of sel, the Carl Johan, and a British ship. The Carl Johan our own Legislature, relating to shipping, there would was adjudged in fault, and the owners claimed tho be a clear presumption a priori that the act referred benefit of the act of 53 Geo. III, ch. 159.
simply to the ships of our own country, it being the According to the citation in 1 Hagg. 113, where the plain and obvious rule, in construing the enactments case was cited by counsel, before Lord Stowell himself, of any Legislature, that the Legislature of each indeafter alluding to the ancient rule of full responsibility | pendent country must be supposed to deal with those of the ship-owners, he said: “ But the avowed purpose subject-matters which are within its own control and of the relaxation of this rule of law was to protect the jurisdiction. As Dr. Lushington expresses it, in the interests of those engaged in the mercantile shipping case of The Zollverein, 2 Jur. (N. S.) 429, in looking to of the State, and to remove the terrors which would an act of Parliament with reference to such a question otherwise discourage people from embarking in the as I am now discussing, viz., as to whether it is in
tended to apply to foreigners or not, I should, in concerning the form of the procedure with regard to endeavoring to ascertain the construction of the act, the substance of the proceeding, it has no application always bear in mind the power of the British Legisla- whatever. And clearly an act which limits the damture; for it is never to be presumed, unless the words ages to which the ship-owner is to be liable, under are so clear that there can by no possibility be a mis- circumstances like the present, deals with the subtake, that the British Legislature exceeded that power, stance and not the form of the procedure." which according to the law of the whole world prop- The opinion concludes: “I have not commented erly belonged to it. The power of this country is to upon what was alleged in the argument in support of legislate for its own subjects all over the world and as the bill, that the American law is identical with our to foreigners within its jurisdiction, but no further. own upon the point in question, because that is not Prima facie, therefore, it would not be the true con- averred upon the bill, and not being averred, I cannot struction of the clause presented for my consideration take cognizance of it. If that were averred and that it is applicable to foreign ships on the high seas -- proved, a case of a different description might arise matters in themselves entirely beyond the jurisdiction between the plaintiffs and such if any of the defeudand scope of the Legislature of this country.'
ants as may be Americans. I should be competent to “However, there are other clauses of this act of Par- administer American law between Americans coming liament by which foreign vessels may occasionally be here for relief. affected, and which may make it advisable to call in “As regards such of the defendants who have deaid those additional guides to which I have referred murred, as are English, it will be useless to amend; for arriving at the true construction, namely, the gene- for as against them no amendment will better the ral circumstances under which the act was passed, and plaintiff's case. * * * As regards such of them as the preamble of the act."
are English I entertain no doubt." After showing that the preamble which recited The demurrer being allowed, the plaintiffs appealed, merely that “it is expedient to amend and consolidate and after argument the appeal was dismissed by the the acts relating to merchant shipping," shed little or lords justices. 2 De Gex & Jones, 614. no light on the question, and referring to the decision Knight Bruce, L. J., said he was of opinion, considof Lord Stowell in The Carl Johan, the vice-chancel- ering the state of the law of England immediately lor proceeds:
before the passing of the act, and considering the con“The general law, however, which is there laid down text, that the court ought not to coustrue the “limited by Lord Stowell, seems to me to be very material in liability sections as applying to the case. He expressly coming to a conclusion as to the object of the present declined to say whether the plaintiffs would have been statute, framed as it is by way of consolidation of the right or wrong if one of the two ships had been Britlaw as it existed when the act was passed."
ish, or if the collision had happened in a British river He then argues that the general law, or law of na- or port." tions, with regard to injuries of this description, has Turner, L. J., said: “The words of these sections provided for full compensation to the iujured party; are no doubt wide and extensive.
But it is and that a construction of the statute which would not because general words are used in an act of Parrestrict the rights of foreign owners under this general liament, every case which falls within the words is to law, whenever run down by a British ship upon the be governed by the act. It is the duty of courts of high seas, would be the last construction he ought to justice so to construe the words as to carry into effect adopt.
the meaning and intention of the Legislature.” As regards this part of the opinion, it is to be re- “This is a British act of Parliament and it is not, I marked that unless it has reference to the “general think, to be presumed that the British Parliament
as administered in British courts, and the rights could intend to legislate as to the rights and liabilities of foreigners therein, it seems to be founded on a mis- of foreigners. In order to warrant such a conclusion, apprehension, the general maritime law on the conti- I think that either the words of the act ought to be nent being different, as we have seen.
express, or the context of it ought to be very clear.” After showing how unjustly such a construction of "Another consideration, which, as it seems to me, the act might operate against nations with a small bears strongly upon the general words of these sections marine and employing a small class of vessels, the vice- of the act, is, I think, furnished by considering the chancellor proceeds to consider the application of vari- source from which these sections are derived. They ous other provisions of the Merchant Shipping Act to are plainly taken from 53 Geo. 3, ch. 159, and the prior foreign vessels. He then says:
acts on which that statute was founded, and those “In the case before me it is damage done by one acts had, before the passing of this act, been decided American ship to another American ship on the high not to apply to foreign rights. The Legislature cannot
Now hitherto I have considered only the ques- be supposed to have been ignorant of that decision at tion as between a ship of this country and a ship of a the time this act was pilssed, and it cannot, I think, foreign country. Even in such a case, it appeared to be imputed to it, that with that knowledge it intended me, as I have said, that it would be beyond the prov- to alter the law on this important question without ince of the Legislature of this country, and unreason- some more definite expression of that intention. able and inequitable to legislate; but to suppose that “But what seems to me to be more decisive upon the Legislature of this country had it in contemplation the subject is the context of the act. If the 504th secto restrict the natural rights I have referred to as tion (corresponding to § 4283, U. S. Rev. Stats.), between two ships, both belonging to foreign coun- reaches the case of a collision between foreign vessels tries, on the high seas, would be still more startling owned by foreigners, the 503d section (see § 4281, U. than to presume that it intended to deal with foreign- S. Rev. Stats.) must also reach that case, and then we ers in a case where those who are affected by the act of must suppose that the British Parliament meant by such foreigners are British subjects, and amenable this act to legislate upon the questions what should be therefore to the acts of the Legislature." P. 383. inserted in the bills of lading of foreign shippers and
" It was contended upon this part of the case that what should be declared by them to the masters of the lex fori should prevail upon those general grounds the vessels on board which their goods were shipped." upon which the lex fori has been held to operate. But it " An attempt was made on tbe part of the appellants is clearly laid down by Dr.Lushington in the case of The to bring this case within Don v. Lipman, and cases of Zollverein, citing with approbation Mr. Justice Story's that class (ou the lex fori); but I think those cases work on the subject (Confl. of Laws, $ 558), that have no bearing upon the point. This is a question of although the lex fori has application to every thing liability, and not of procedure.”'
The case of The Wild Ranger, 32 L. J., Adm. 49 (1862), be correct. The actual case has not occurred, so there
occurring here to an American vessel, to grant the Dr. Lushington said that the first question was as to same privilege. Now this is apparently a very equitthe right of the owners of the American ship, under able proposition - to do as you have been done by. But the circumstances of the case, to the benefit of sec- consider what this court is asked to do. By the ancient tion 504 of the Merchant Shipping Act of 1854, and law this court was bound to enforce liability to the exthat it was not directly governed by any decided case. tent of the injury. How was this law altered ? By act He referred at length to the opinion of Lord Stowell of Parliament in certain cases. True; if the statute in The Carl Johann, as cited in 3 Hagg. 186, to the empowers me to grant the application, well and good; effect that if Sweden adopted such a rule as the British if it does not, I want to know by what authority I statute it would apply to both countries, and said: could do so. Can it be contended that the act of Par, is to
- is considerable length in supporting the claiin which has me to permit limited liability in any case of given cirbeen preferred to limited liability on the present occa- cumstances per se; but if you had the fact that the sion. But I cannot assent to that opinion, nor do I nation to whom the suitor belongs ordains limited believe, that if that case had been fully reported, Lord liability, I am to put a different construction upon the Stowell meant in reality to lay down, for the reasons I words of the statute itself? I am utterly at a loss to am about to state, any such doctrine at all; but I at conceive how such a proposition can be maintained. once think it right to say most distinctly that to that The Instance Court of Admiralty is a municipal court. doctrine I cannot assent."
It is widely distinguished from a court of admiralty After reviewing the previous decisions he said: “It acting under a prize commission. In the latter case is right to bear in mind the position of Lord Stowell there is a much wider discretion and greater powers it is undenied on all hands -- viz., that the ancient law are conferred. But in the Instance Court what auwas that of unlimited liability; and then the question thority have I to deal with an act of Parliament beyond arises, by what authority that ancient law can be al- carrying it into execution according to its legitimate tered, and whether it has been altered by any author- coustruction? And such, in my opinion, is my sole ity which the court is bound to obey. * * I know duty. But were I disposed to part from this positionof no authority — and I apply this observation more and assuredly I am not-would either the authorities or particularly to what is said to have fallen from Lord the facts support me in so doing? Stowell in the case of The Carl Johan by which the “In my argument I have assumed that the American ancient law could be changed save by an act of Par- law would give limited liability to a British vessel if liament.
placed in similar circumstances in an American court. “Now as to the statute in question and the 504th I have assumed the American law to be so, but I must section of it (see $ 4283, U.S. Rev. Stats.), it is obvious not be understood to have declared an opinion that that this section refers, or may refer, to collisions on such law has been clearly and satisfactorily proved in the high seas; and upon the present occasion the col- this case. lision in question took place upon the high seas.
“I am under the necessity of refusing this applicapresumption of law, as established by the case of Copetion.” v. Doherty, is that the British Parliament never in- In General Iron Screw Collier Company v. Schurtended to legislate for foreigners on the high seas. manns, 1 Johns. & Hemm. 180 (1860), the plaintiffs were Now what difference does it make that the collision registered owners of the British ship William Hutt, took place with a British ship? How can it be said which came into collision with the Dutch ship Sophie, that the statute shall be so construed that limited lia- owned by natives of Holland, about two and a half bility shall be refused to the wrong-doer of two foreign miles from Dungeness Point. The plaintiffs claimed a ships and granted to the wrong-doer of one foreign limited liability, it having been adjudged in admiralty ship in collision with a British vessel ? There is noth- that their vessel was solely in fault. ing whatsoever in the statute itself that I can discover Vice-Chancellor Wood, in his judgment, cited with which sanctions or even permits such mutable con- approval the opinion of Dr. Lushington in the case of struction. The statute applies to all foreign ships on The Zollverein, that "the power of this country is to the high seas or to none. To draw a distinction between legislate for its own subjects all over the world, and as the collision of a foreign ship with a foreigner, or with to foreigners within its jurisdiction, but no further," a British ship on the high seas is, so far as the con- and said, “that is a very neat and precise statement of struction of the statute is concerned, purely arbitrary. the principle on which acts of the Legislature ought to On what ground can such a proposition be maintained ? be interpreted.” P. 192. On the ground that if cæteris paribus, the British ship “With respect to foreign ships I still adhere to the had been the delinquent, her owner would have been opinion which I expressed in Cope v. Doherty—that a entitled to unlimited liability ? On this point let me foreign ship meeting a British ship on the open ocean advert to The Iron Screw Co. v. Schurrman. Vice- cannot properly be abridged of her rights by any act Chancellor Wood says: 'I still adhere to the opinion of Parliament." P. 193. which I expressed in Cope v. Doherty, that a foreign He then refers to the principles established in the ship meeting a British ship on the open ocean cannot law of nations that for certain purposes every country properly be abridged of her rights by any act of the may legitimately exercise jurisdiction over the high British Legislature;' so that a foreign ship meeting a seas within three miles from its shores, and says, that in British ship on the ocean, and the British ship being dealing with so large a subject as that embraced in the to blame, no limited liability can be claimed by the Merchant Shipping Act, the natural desire of the LegBritish ship if the opinion of Vice-Chancellor Wood islature 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.
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, aud 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 excbange resides outside of the corporate linits 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 tban 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
NOTICE BY MAIL OF DISHONOR OF BILL.
NEBRASKA SUPREME COURT, JULY 21, 1880.
FORBES V. OMAHA NATIONAL BANK.
dishonor of a negotiable instrument resides within the
Bank against M. Forbes
11 id. 231, in 1814), was held that inSufficient facts appear in the opinion. From a judg
dorser to be charged resided at Kip's Bay, within the ment in favor of plaintiff below a writ of error was
corporate limits of New York city, but outside of the taken.
compact portion of the city, and where the letter car
riers did not deliver letters, but had a place of business George W. Doane, for plaintiff in error.
on Frankfort street, within the compact part of the E. Wakeley, for defendant in error.
city, where he had directed the letter carriers to leave
all of his letters, and the notice of dishonor was put COBB, J. Several questions are presented by the into the post-office in New York city, directed to the record in this case, but as one of them appears to me indorser, at his place of business on Frankfort street, to quite overshadow the others in point of importance, the same was nut sufficient notice of the dishonor of and the conclusion reached in its examination being the bill to charge the indorser. In the opinion the decisive of the case, I deem it unimportant to consider court uses this language: “The invariable rule with us the others. The District Court found “that the said is that when the parties reside in the same city or Samuel Hawver and R. M. Forbes were respectively place, notice of the dishonor of bills or notes must be duly uotified of such presentment, non-payment, and personal, or something tantamount, such as leaving it refusal, and tbat the plaintiff would look to them re- at the dwelling-house or place of business of the party, spectively for payment of the same, with damages and if absent. If the party to be served by a notice recosts; that at the time of such presentment and noti- sides in a different place or city, then the notice may fication the said R. M. Forbes resided about one mile be sent through the post-office to the post-office nearest or one and a quarter miles outside of the corporate the party entitled to the notice." limits of the city of Omaha, in the State of Nebraska, The authority of this case has never been shaken. where the said bank was situated and did business and But unfortunately, when the courts came to apply it said draft was payable, and where the hotary herein- to cases like the one at bar they separated widely; the after mentioned resided, and that said R. M. Forbes Supreme Courts of New York, l'onnecticut, Massahad no regular or usual place of business in said city; chusetts, Maine, Louisiana and Tennessee holding in that the post-office at which he theu obtained his mail effect that the words “city or place,” as used by the was the post-office in the city of Omaha, which court in Ireland v. Kip, should be understood as meanwas the nearest post-office to his residence, and about ing the place in fact rather than in law, and that the three miles therefrom; tbat on the evening of October iudorser or maker, entitled to uotice of dishonor, must 23, 1871, when the note was presented for payment, one be served personally, or by leaving the notice at his William Wallace, a notary public and agent of the residence or place of business, unless he resides nearer plaintiff's bank, deposited in the post-office at Omaha to some other post-office, in which case notice may be notice in due form of the presentment and dishonor sent to him by mail. Say the court, per Bronson, J., of said draft, and that plaintiff would look to him for in Babcock v. Benham, 4 Hill, 129, “the post-offico is payment thereof, directed to the said R. M. Forbes, at not a place of deposit for notices to indorsers, except the post-office in Omaha, with the postage thereon wben the notice is to be transmitted by mail to another paid.”
office.” In Ransom v. Mack, 2 Hill, 587, the same Thus, while the court finds that the said Samuel judge, in delivering the opinion of the court, uses the Hawver and R. M. Forbes were respectively duly I following language: •The corporation limits of our