| N.Y. Sup. Ct. | Aug 15, 1822
delivered the opinion of the Court.
This is a writ of error to the Mayor’s Court of JYewYork. On the trial, the Recorder directed a nonsuit, on the ground that the evidence offered by the plaintiff was not sufficient to support the issue.
The first question is, whether due diligence has been used to demand payment of the maker. If it has, then, whether there is competent evidence to charge the indorser ?
The notes were protested in 1814, by William Bleecker, a notary, now deceased. The protest states, that he went with the original notes, and made inquiry for Be Bruges, the maker, in order to demand payment; but he could not find him. The notes are dated in JYew-York, and there is no evidence that the maker resided elsewhere. If the notary had been living, and testified to the facts contained in the protest, it would have been, prima facie, sufficient to show reasonable diligence to demand payment of the maker. (Stewart v. Eden, 2 Caines’ Rep. 121.) In Welsh v. Barrett, (15 Mass. Rep. 380.) the question was fully discussed, whether the hook of the messenger of a bank, who was dead, in which, in the course of his duty, he entered memoranda of demands and notices, could be received in evidence of a demand on the maker, and notice to the indorser. The Court admitted the evidence, considering the principle as founded in good sense and public convenience. “ What a man has said, when not under oath, may not, in general, be given in evidence, when he is dead; because his words may have been misconstrued, or misrecollected, as well as because it cannot be known that he was under any strong motive to declare the truth. But what a man has actually done, and committed to writing, when under obligation to
In Price v. The Earl of Torrington, (1 Salk. 285.) the evidence given to charge the defendant was, that the usual way of the plaintiff’s dealing was, that the draymen came every night to the clerk of the brew-house, and gave him an account of the beer they had delivered out, which the clerk set down in a book kept for that purpose, to which the draymen set their hands ; and that the drayman was dead, but that this was his hand set to the book: this was held good evidence of a delivery. In Pitman v. Maddox, (2 Salk. 690.) Holt, Chief Justice, allowed a shop book for evidence, on proof of the servant’s hand, who made the entries, and that he was dead, and that he was accustomed to make the entries ; no proof was required of the delivery of the goods. So, also, in Pritt v. Fairclough, (3 Camp. N. P. Rep. 305.) it was held, that an entry by a deceased clerk of the plaintiff, in a letter book, was admissible evidence, under the circumstances of that case, of the contents of a letter. Lord Ellenborough, on that occasion, observes, ‘‘ the rules of evidence must expand according to the exigencies of society.” In 3 Camp. N. P. Rep. 379. the same doctrine is recognised. The entry of the deceased clerk of a merchant, in the letter book, was received in evidence, on proof that it was made in the usual course of business, in the merchant’s counting house. I am satisfied, on principle and authority, that the evidence was competent, and that there was due diligence to demand payment of the maker.
The New-York Directory, by Longworth, was offered in evidence, to prove that neither the name of the maker, nor indorser, was inserted therein. This was properly overruled. If it was evidence, it only proved that neither the maker, nor indorser, rented or occupied a house ; they might have been residents, and lodged in the city, notwithstanding. It did not establish the fact necessary to be made out; but it was not evidence. For aught that appears, Longivorth was living, and might have been called. If he was dead, it would not fall within the rule, which I have already considered.
When the holder of a bill does not know where the indorser is to be found, he does not lose his remedy, by not communicating immediate notice of the dishonour of the bill. If he uses reasonable diligence to discover the residence of the indorser, notice given as soon as it is discovered, is due notice of the dishonour of the bill, within the usage and custom of merchants. (Bateman v. Joseph, 2 Camp. N. P. Rep. 461.)
In Chapman v. Lipscombe, (1 Johns. Rep. 294.) the bill was drawn and dated at New-York ; there was no evidence that the plaintiff knew that the defendants resided at Peters-burgh. He inquired at the banks, and elsewhere, and being informed that the drawers resided at Norfolk, he sent a notice, by post, to them, and another addressed to them at New-York. This was held sufficient, and all that ought to be required.
The evidence for the plaintiff did nbt bring his case within the principle of these decisions. The book entitled, “ Manhattan Protests,” being the register of protests kept by Bleecker, contained memoranda, or remarks, at the foot; at the bottom of one of the protests there are the following words, in the handwriting of Bleecker: “ Put notice for Martinet in post-office. W. B.” Also, the words, “ Left notice for P. L. Martinet at R. Hallidaifs. Noticed holder. A. W.B.”
Anthony W. Bleecker, a witness, says, that the last initials were written by him at the time; that he has no recollection of the transaction, but has no doubt he left the notice as stated; that it was the custom of the office to leave notice at the residence of the indorser, if they could learn where it was; and, if they could not discover it, to put a notice in the post-office. He has no doubt that such inquiry was made, but he could not say, whether it was made by any person. This evidence does not prove that the indorser lived in New-York, or that he could not be found, or to what place the notice in the post-office was directed. It only proves, what had been the practice of the notary’s office heretofore. In the present instance, to allow this to establish the fact, that the indorser could not be found, we must
The remarks at the foot of the other protest, subscribed by McLean, states, that notice was put in the post-office for Martinet; but the witness does not know how it was directed. He states, that it was the custom of the office to leave notice at the residence of the indorser, if they could learn where it was, and if they could not discover it, to put a notice for him in the post-office; and he has no doubt inquiry was made for the residence of Martinet, and that it could not be ascertained; but he cannot say, that such inquiry was made by Bleecker, the witness, or any other person.
Stollenwerck proves no material fact. He says, that in 1814, Martinet had no family, nor any house or shop, in New- York, and that he had been the greater part of his time absent from the city, having been employed to go to the southward with merchandise to dispose of; that when he returned to New-York; he remained a sufficient time to settle his accounts, and until he was sent with a new supply ; and, when in the city, he staid at, and transacted his business in the house and shop of Stollenwerck and Brothers. If inquiry had been made, and particularly of this witness, the holder might have gained information where to direct a notice, if the indorser was not then in New-York. It remains wholly uncertain, whether diligent inquiry was made for the indorser, and thathe could not be found; and whether he resided in the city of New-York, or at what other place. The notice in the post-office was a nullity, unless it appeared that he resided at some place other than New-York; and if he did, then it should appear that the notice was directed to him at such place. If the holder of the note has done all that a diligent and prudent man could naturally and fairly do, under the circumstances, we should be satisfied, and require no more. If the notary had stated, that the indorser could not be found, as he has done with respect to the maker, he would have made out sufficient to entitle the plaintiff to recover; but, to charge a party on a contract
Judgment affirmed.