make use of the mail for the transmission of notice, but may adopt a private conveyance, provided he shows that due diligence was used.(1) Where, however, notice is sent to one party through another, the risk is the sender's own. Unless due diligence be shown, the loss is his.(2) In Fish v. Jackman, 19 Maine, 467, 472, it was said that where an endorser, resides in a secluded part of the country, twenty miles from any post office, the mail is not an allowable medium of notice; but this is probably not correct; one who becomes a party to a commercial instrument should be considered as rendering himself subject to commercial law and usage.(3)

AS TO THE PLACE to which notice sent by mail is to be directed. If the residence of the party is known, the general principle of law is that laid down in the principal case, and recognized in Bank of the United States v. Carneal, 2 Peters, 543, 551, and in Chouteau v. Webster, 6 Metcalf, 1, 7, that notice should be sent to such place that it will be most likely promptly to reach the person for whom it is intended. Notice directed at large to the town or district of country, where the parties reside, is, in the absence of any special notification to adopt a different address, always sufficient, although there may be several post offices in the [*404 town, or he may usually receive his letters at the post office of another place.(4) If, however, the party usually receives his letters at the post office of a different place from that in which he resides, notice sent to that post office will be good.(5) If the party does not live in any village or town in which there is a post office, notice should be sent to the office nearest his domicile ;(6) but if he commonly receives his letters at a more distant office, notice may be sent to that to which he usually resorts;(7) in such a case, notice may he sent to either office.(8) In

Hagerstown Bank, 7 Gill, 216; dicta in Manchester Bank v. Fellows, 8 Foster, 315 Woodcock ». Houldsworth, 16 Meeson & Welsby, 124, 126.

(1) Jarvis v. St. Croix Manufacturing Company, 23 Maine, 287.

(2) Clarke v. Ward, 4 Duer, 206.

(3) See State Bank of Elizabeth v. Ayers, 2 Halsted, 130, 131.

(4) Bank of Manchester v. Slason, 13 Vermont, 334, 340; Remer v. Downer, 23 Wendell, 620, overruling Cuyler v. Nellis, 4 Id. 398; Rand v. Reynolds, 2 Grattan, 171.

(5) Reid v. Payne, 16 Johnson, 218; Hunt v. Fish, 4 Barbour's Supreme Court, 325, 330; Morris v. Husson, 4 Sandford, 96; Grief v. McDaniel, 14 Louisiana, An. 160. (6) State Bank of Elizabeth v. Ayers, 2 Halsted, 130, 131; Dunlap v. Thompson, 5 Yerger, 67, 70; Priestley and others v. Bisland and others, 9 Robinson, 426, 429.

(7) Bank of Geneva v. Howlett, 4 Wendell, 328; Montgomery County Bank v. Marsh 11 Barbour, 645, Glasscock v. Bank of Missouri, 8 Missouri, 443, 445; The New Orleans and Carrollton Railroad Company v. Robert, 9 Robinson, 130; The Grand Gulf Railroad and Banking Company v. Barnes, 12 Id. 128, 129.

(8) Farmers' and Merchants' Bank v. Battle and Massey, 4 Humphreys, S6, 91; New Orleans Canal and Banking Company v. Briggs, 12 Robinson, 175; Follain and others v. Dupré and others, 11 Id. 456, 472; Hazelton Coal Co. v. Ryerson, Spencer, 129; Barry et al. v. Crowley, 4 Gill, 195, 202.

Bank of the United States v. Lane, 3 Hawks, 453, 456, it is said, that, after all, the question settles down to the inquiry, not whether the notice was directed to the nearest post office to the party, but to that which was most likely to impart to him the earliest intelligence.

If the party is temporarily absent from home, for a longer or shorter time, notice sent to his general domicile will be sufficient, and should be sent there, if not given to him personally.(1) The better opinion is, that notice given to the party in person, or directed to him at his actual residence through the post office, when he is away from home, will be good, unless at the time of incurring his liability he stipulated that notice should be sent to a particular place. Notice addressed by mail to an endorser, who is residing at Washington in the performance of his duty as a member of Congress, will be good;(2) but in such a case, if the party's general domicile continues, notice sent to it will be sufficient.(3) If the party's residence has been changed without the knowledge of the holder, notice may be sent to the original residence.(4) Notice sent to a particular place pointed out by the endorser, will generally be good, both in reference to himself and parties behind him.(5) [And if an endorser should write after his name " 13 Chambers st.," the location of his office in New York, he thus indicates this as a proper place to direct a notice to, though he resides in Brooklyn-not in New York.(6)] If the residence of the party is transitory and variable notice is properly sent to the place of his most usual resort.(7) [And though a person may be actually and unquestionably residing in one, place, yet if he have allowed other persons to do acts which indicate him as residing in another, or have done such acts himself, so that persons might reasonably suppose that he was resident in the last named place, notice sent there will be sufficient.(8)]

If the residence of the endorser is not known to the holder, he or his agent or notary, must use due diligence to discover it; and if due diligence be used, it will be sufficient, even though the notice should

*405]

(1) Fisher v. Evans, 5 Binney, 541; Hager v. Boswell, &c., 4 J. J. Marshall, 61, 62; Stewart v. Eden, 2 Caines, 121, 127; McMurtrie v. Jones, 3 Washington, 206, 208; Smedes v. Utica Bank, 20 Johnson, 372, 382; see Goodwin v. McCoy, 13 Alabama, 271, 279; Commercial Bank v. Strong, 28 Vermont, 317.

(2) Chouteau v. Webster, 6 Metcalf, 1; Tunstall v. Walker, 2 Smedes & Marshall, 638. (3) Marr v. Johnson, 9 Yerger, 1, 6.

(4) Union Bank of Tennessee v. Govan, 10 Smedes & Marshall, 334, 342.

(5) Shelton v. Braithwaite, 8 Meeson & Welsby, 252.

(6) Morris v. Husson, 4 Sandford, 96.

(7) McClain v. Waters, 9 Dana, 55.

(8) Lewistown Falls Bank v. Leonard, 43 Maine, 157. See, however, Commercial Bank v. Strong, 28 Vermont, 316, in which case it is said that an office in a place different from the place in which the person resides, in which office he is in an official capacity, is not the proper place to send a notice; it not being his private business place.

be sent to the wrong place:(1) and the rule is the same, where a known residence has been changed.(2) By sending notice, after due diligence, a right of action is acquired, and if the holder subsequently discovers that his notice was missent, and acquires knowledge of the party's actual residence, he is not bound to send a second notice.(3) Due diligence consists in making inquiry from such accessible persons as, from their connection with the transaction, or place, or parties, are most likely to be informed, and in sending notice to the place where, according to the best information to be obtained, the party is most likely to be reached.(4) The holder will be justified in relying upon information derived from the agent of the endorser to be affected, or from the drawer of an accommodation bill or maker of an accommodation note, endorsed and discounted for his benefit, or from his agent, or from a subsequent endorser, who professes to know and is interested to speak truly;(5) but not on the statements of mere strangers having no connection with the parties and no probable knowledge of them, unless it appear that no better information can be had ;(6) see this matter considered at large in Harris v. Robinson, 4 Howard's S. C. 336, 346, &c. A holder is not justified in sending notice to the place where the bill is dated, without making inquiry, if the drawer really resides elsewhere; the date of a bill not being a sufficient indication of residence to dispense with further inquiry ;(7) especially if the bill be dated generally, as "Moncton”—(a place not much known, of which might be a village, township, or parish at large)—without stating in what county or parish the place is;(8) and this applies still more strongly to the case of an

(1) Nichol v. Bate, 7 Yerger, 305; Barr, etc., v. Marsh, 9 Id. 253; Davis v. Beckham, 4 Humphreys, 53; Hoopes and Bogart v. Newman, Executor, Smedes & Marshall, 71, 79.

(2) Phipps and others v. Chase, 6 Metcalf, 491; Barker v. Clark, 20 Maine, 156; Planters' Bank v. Bradford, 4 Humphreys, 39; Harris v. Memphis Bauk, Id. 519. (3) Lambert et al. v. Ghiselin, 9 Howard's S. Ct. 552, 558.

534;

(4) See Winans v. Davis, 3 Harrison, 277; Woodruff v. Daggett, Spencer, 526, Hill. Varrell, 3 Greenleaf, 233; Branch Bank of Decatur v. Pierce, 3 Alabama, 321; Stuckert v. Anderson, 3 Wharton, 116; Hunt v. Nugent, 10 Smedes & Marshall, 542, 548; Carroll v. Upton, and Rawdon v. Redfield, 2 Sandford's S. Ct. 172, and 178; Lambert et al. v. Ghiselin, 9 Howard's S. Ct. 552, 558; Hunt v. Maybee, 3 Selden, 271.

(5) Bank of Utica v. Davidson, 5 Wendell, 587; Catskill Bank v. Stall, 15 Wendell, 364, S. C. on error, 18 Id. 466; Bank of Utica v. Bender, 21 Id. 643; Ransom v. Mack, 2 Hill's N. Y. 588, 592; and see Farmers' and Merchants' Bank v. Eddings, 4 Humpreys, 521, note.

(6) Bank of Utica v. De Mott, 13 Johnson, 432; Spencer v. The Bank of Salina, 3 Hill's N. Y. 520.

(7) Fisher . Evans, 5 Binney, 541; Lowery v. Scott, 24 Wendell, 358; Spencer v. The Bank of Salina, 3 Hill's N. Y. 520; Carroll ». Upton, 3 Comstock, 272, 274; Barnwell v. Mitchell, 3 Connecticut, 101; Foard v. Johnson, 2 Alabama, 565; Fitler v. Morris, 6 Wharton, 406, 415.

(8) Balloch v. Binney, 3 Kerr, 441.

endorser;(1) however, if after due diligence, no information is obtained as to the party's residence, notice is properly sent to the place where the bill or note is dated.(2) If, however, it be not shown that the drawer resides elsewhere, probably, it will be taken, primâ facie, that the place of the date is the place of his residence, *and notice *406] sent there will be good.(3) If the holder cannot ascertain the endorser's residence, he may enclose the notice to some one elsewhere who is acquainted with it, directing him to send it on.(4)

Beyond the limit of these very general suggestions, no fixed rule can be indicated; but it is a question for the court, under all the circumstances, whether the holder has used reasonable and proper diligence.(5) If the endorser be dead, notice, regularly, should be sent to his personal representative. (6) If it is known to the holder, or could be ascertained by reasonable inquiry, who the representative of the endorser is, a notice sent addressed to the deceased endorser is bad,(7) but if there be no executor or administrator, or their existence is not known to the holder, notice addressed to the endorser, at the residence of his family, will be sufficient.(8) Notice addressed "to the legal representative," of the endorser, and sent by mail to the place of the endorser's residence, the holder not knowing who the administrator is, [or where none has yet been appointed] is sufficient.(9) Where given to executors, it is not important that they have not yet proved the will, provided they have not renounced.(10) Where a partnership is the endorser, and one of the firm is dead before the default, notice intended to charge the firm effects must be sent to the surviving partner; but if intended to charge the private estate of the deceased partner, must be sent addressed to his administrator.(11)

(1) Denny v. Palmer, 5 Iredell's Laws, 611, 621; McLanahan et al. v. Brandon, 1 Martin, N. S. 322.

(2) Wood and others v. Corl, 4 Metcalf, 203, 206; Bank of Utica v. Davidson, 5 Wendell, 587; Godley et al. v. Goodloe, 6 Smedes & Marshall, 255; Branch Bank at Decatur v. Peirce, 3 Alabama, 321.

(3) Page and Stivers v. Prentice and Weissinger, 5 B. Monroe, 7; Robinson and Davenport v. Hamilton, 4 Stewart & Porter, 91.

(4) Hartford Bank v. Stedman and Gordon, 3 Connecticut, 489; Safford v. Wyckoff, 1 Hill's N. Y. 12.

(5) Watson v. Tarpley, 18 Howard, 519.

(6) The New Orleans and Carrollton Railroad Company v. Kerr and another, 9 Robin122; Oriental Bank v. Blake, 22 Pickering, 206.

son,

(7) The Cayuga County Bank v. Bennett, 5 Hill's N. Y. 237, 238.

(8) Stewart v. Eden, 2 Caines, 121, 128; Merchants' Bank v. Birch, 17 Johnson, 25; Willis v. Green, 5 Hill's N. Y. 232, 234; Planters' Bank v. White, 2 Humphreys, 112. (9) Pillow v. Hardeman, Adm'r, 3 Humphreys, 538; Boyd v. City Savings Bank, 15 Grattan, 501.

(10) Shoenberger v. Lanc. Saving Inst., 28 Penna. State, 459.

(11) Cocke v. The Bank of Tennessee, 6 Humphreys, 51.

Notice need not be in writing: verbal notice is sufficient.(1) [And a verbal notice of dishonor, which calls forth a conversation, and on which any inquiry can be made on the spot, if the notice were not as formal as it might be, is not to be construed with the same strictness as a written notice, when that is the only means of information the party has.(2)]

[If the endorser's christian name, as commonly known, is set out in the notice, with his town or city residence, this is enough. The number and street need not be given; thus a notice to "Mrs. Susan Collins, Boston," is enough(True v. Collins, 3 Allen, 439); but if the christian name is not given, this would be too general. Walter v. Haynes, Ry. & Moody, 149, where a notice to "Mr. Haynes, Bristol," was held bad.] Where a note is endorsed in a partnership name, notice to one partner is notice to the firm ;(3) but where joint payees, who are not partners, jointly endorse a note, both must have notice, to render either liable.(4)

*PARTNERSHIP.

[*407

OF THE EXTENT TO WHICH ONE MEMBER OF A COMMERCIAL PARTNERSHIP MAY BIND THE FIRM.

LIVINGSTON v. C. C. ROOSEVELT AND
C. I. ROOSEVELT.

In the Supreme Court of New York.

MAY TERM, 1809.

[REPORTED, 4 JOHNSON, 251-280.]

Where a person takes a partnership security from one of the partners, for what is known, at the time, to be a particular debt of the partner who gives the security, the copartnership is not liable. Where there is a partnership limited to a particular trade or business, one partner cannot bind his copartner by any contract not connected with such trade or business. And a knowledge in third persons of the limited nature of the partnership, will be inferred from circum

(1) Cuyler v. Stevens, 4 Wendell, 566; Gilbert v. Dennis, 3 Metcalf, 495, 498; Glasgow . Pratte, 8 Missouri, 336.

(2) Woodin v. Foster, 16 Barbour, 149; and see Metcalfe v. Richardson, 11 C. B. (73 E. C. L.) 1011.

(3) Dabney v. Stidger, 4 Smedes & Marshall, 749.

(4) Sayre v. Frick, 7 Watts & Sergeant, 383; Willis v. Green, 5 Hill's N. Y. 232; The State Bank v. Slaughter, 7 Blackford, 133; Shepard v. Hawley, 1 Connecticut, 367; and see Wood v. Wood and Wood, 1 Harrison, 429; contra, Dodge et al. v. Bank of Kentucky, 2 Marshall, 610, 615; Higgins v. Morrison's Executor, 4 Daua, 100, 106; and see Goddard v. Lyman, 14 Pickering, 268.