United States v. Stansbury. 1 P.

in the forms prescribed, shall amount solely to a liberation of the person, not to a release of the judgment; that shall remain good and sufficient. Were courts to say that, notwithstanding this provision, the judgment is released, it would amount to a declaration, that a technicalrule in the common law, founded in a presumption growing out of the simplicity of ancient times, and not always consistent with the fact, is paramount to the legislative power. It would in fact be to repeal the statute. It would unquestionably be to defeat the object of the legislature; since it would be no very hardy assertion to say that, if the discharge of the person in custody discharged the other obligors, the imprisoned debtor would never be released while the debt remained unpaid; unless the insolvency extended to all the obligors.

The second point made by the counsel for the defendants, that the sureties are exonerated by the compromise made with the principal without their concurrence, is the same in principle with that which has been considered. No compromise of the debt has been made. The course prescribed by the law has been pursued. The whole property of the imprisoned debtor has been surrendered, and on receiving it his person has been discharged. The act of congress declares that the judgment shall still remain in force. If the creditor had entered into a compromise not prescribed by law, or had given any discharge not directed by statute, the question might have been open for argument. But, while the whole transaction is within the precise limits marked out by law, it cannot produce a result directly opposite to that intended by the statute. The only doubt which can be suggested, respecting the intent of the legislature, is created by the last words of the sentence, declaring that the judg ment shall remain good and sufficient in law. They are, "and may be satisfied out of any estate which may then, or at any time afterwards belong to the debtor. These words are [* 577] certainly useless; and may be supposed to indicate an idea that it could be satisfied out of the estate of the debtor only; that, as they are not required to render that estate liable, they may be understood to limit the right of the creditor to obtain satisfaction from the estate of any other person. We do not, however, think this the correct construction. The words are con sidered as mere surplusage, not as limiting the rights of the United States to proceed against all those who are bound by the judg

ment.

We think, then, that the circuit court ought to have sustained the demurrer; and that the judgment which overrules it ought to be reversed. But considering the plea, and the manner in which the

Bank of Columbia v. Lawrence. 1 P.

cause has been brought up, the court will not direct an absolute judgment to be entered for the United States; but will reverse the judgment and remand the same for further proceedings, that the circuit court may give leave to the defendants to plead.

5 P. 173; 15 H. 281.

THE BANK OF COLUMBIA, USE of the Bank of THE UNITED STATES v. JOHN LAWrence.

1 P. 578.

An indorser resided in the country, two or three miles from the town of Georgetown, where the note was payable, and was in the habit of receiving his letters at the post-office of that place; held, that a notice put into that post-office, and directed to him at Georgetown, was sufficient.

THE case is stated in the opinion of the court.

Key and Dunlop, for the plaintiffs.

Jones and Taylor, contrà.

THOMPSON, J., delivered the opinion of the court.

[ * 580 ]

This case comes before the court upon a writ of error to the circuit court of the District of Columbia.

The defendant was sued as indorser of a promissory [581] note for $5,000, made by Joseph Mulligan, bearing date the 15th of July, 1819, and payable sixty days after date, at the Bank of Columbia. The making and indorsing the note, and the demand of payment, were duly proved; and the only question upon the trial was touching the manner in which notice of non-payment was given to the indorser; no objection being made to the sufficiency of the notice in point of time.

The material facts before the court upon this part of the case, as shown by the bill of exceptions, were: That the banking-house of the plaintiffs was in Georgetown, at which place the note appears to be dated. That some time before the note fell due the defendant had lived in the city of Washington, and carried on the business of a morocco leather-dresser, keeping a shop and living in a house of his own in the said city. That about the year 1818, he sold his shop and stock in trade and relinquished his business, and removed with his family to a farm, in Alexandria county, within the District of Columbia, and about two or three miles from Georgetown. That the Georgetown post-office was the nearest post-office to his place of residence, and the one at which he usually received his letters.

Bank of Columbia v. Lawrence. 1 P.

The notice of non-payment was put into the post-office, at Georgetown, addressed to the defendant at that place. It was proved on the part of the defendant, that at the time of his removal into the country, and from that time until after the note in question fell due, he continued to be the owner of the house in Washington, where he formerly lived, and which was occupied by his sister-in-law, Mrs. Harbaugh. That he came frequently and regularly every week, and as often as two or three times a week, to this house; where he was employed in winding up his former business and settling his accounts, and where he kept his books of account, and where his bank notices, such as were usually served by the runner of the bank on parties who were to pay notes, were sometimes left, and sometimes at a shop opposite to his house; and where also his newspapers and foreign letters were left. That his coming to town and so employing himself was generally known to persons having business with him. That his residence in the country was known to the cashier of the bank. That there was a regular daily mail from Georgetown to the city of Washington, and that the defendant's house was situated in Washington less than a quarter of a mile from Georgetown.

There was also some evidence given on the part of the plaintiffs tending to show that the usage of the bank in serving notices in

similar cases, was conformably to the one here pursued, and [582] that the defendant was apprised of such usage. But that testimony may be laid out of view, as this court does not found its opinion in any measure upon that part of the case. Upon this evidence the plaintiffs prayed the court to instruct the jury, that it was not incumbent on them to have left the notice of the nonpayment of the note at the house occupied by Mrs. Harbaugh, as stated in the evidence; but that it was sufficient, under the circumstances stated, to leave the notice at the post-office in Georgetown; which instructions the court refused to give, but instructed the jury that their verdict must be governed according to their opinion and finding on the subject of usage which had been given in evidence. The jury found a verdict for the defendant.

From this statement of the case it appears that the note was made at Georgetown, payable at the Bank of Columbia, in that town. That the defendant when he indorsed the note lived in the county of Alexandria, within the District of Columbia, and having what is alleged to have been a place of business in the city of Washington; and the notice of non-payment was put into the Georgetown postoffice, addressed to the defendant at that place, by which it is understood that the notice was either inclosed in a letter, or the notice itself sealed and superscribed with the name of the defendant, with

Bank of Columbia v. Lawrence. 1 P.

the direction" Georgetown" upon it; and whether this notice is sufficient is the question to be decided.

If it should be admitted that the defendant had what is usually called a place of business in the city of Washington, and that notice served there would have been good; it by no means follows that service at his place of residence in a different place, would not be equally good. Parties may be and frequently are so situated that notice may well be given at either of several places. But the evidence does not show that the defendant had a place of business in the city of Washington, according to the usual commercial understanding of a place of business. There was no public notoriety of any description given to it as such. No open or public business of any kind carried on, but merely occasional employment there two or three times a week in a house occupied by another person; and the defendant only engaged in settling up his old business. In this view of the case, the inquiry is narrowed down to the single point, whether notice through the post-office at Georgetown was good; the defendant residing in the country two or three miles distant from that place in the county of Alexandria.

The general rule is, that the party whose duty it is to give notice in such cases is bound to use due diligence in communicating such notice. But it is not required of him to see that the notice

is brought home to the party. He may employ the* usual [ *583 ] and ordinary mode of conveyance, and, whether the notice

reaches the party or not, the holder has done all that the law requires of him.

It seems at this day to be well settled, that when the facts are ascertained and undisputed, what shall constitute due diligence is a question of law. This is certainly best calculated to have fixed on uniform rules on the subject, and is highly important for the safety of holders of commercial paper.

And these rules ought to be reasonable and founded in general convenience, and with a view to clog as little as possible, consistently with the safety of parties, the circulation of paper of this description; and the rules which have been settled on this subject have had in view these objects. Thus, when a party entitled to notice, has in the same city or town a dwelling-house and counting-house or place of business within the compact part of such city or town, a notice delivered at either place is sufficient; and if his dwelling and place of business be within the district of a letter-carrier, a letter containing such notice, addressed to the party and left at the postoffice, would also be sufficient. All these are usual and ordinary modes of communication, and such as afford reasonable ground for

Bank of Columbia v. Lawrence. 1 P.

presuming that the notice will be brought home to the party without unreasonable delay. So when the holder and indorser live in different post-towns, notice sent by the mail is sufficient, whether it reaches the indorser or not. And this for the same reason, that the mail being a usual channel of communication, notice sent by it is evidence of due diligence. And for the sake of general convenience it has been found necessary to enlarge this rule. And it is accordingly held, that when the party to be affected by the notice resides in a different place from the holder, the notice may be sent by the mail to the post-office nearest to the party entitled to such notice. It has not been thought advisable, nor is it believed that it would comport with practical convenience, to fix any precise distance from the postoffice within which the party must reside, in order to make this a good service of the notice. Nor would we be understood as laying it down as a universal rule, that the notice must be sent to the postoffice nearest to the residence of the party to whom it is addressed. If he was in the habit of receiving his letters through a more distant post-office, and that circumstance was known to the holder or party giving the notice, that might be the more proper channel of communication, because he would be most likely to receive it in that way; and it would be the ordinary mode of communicating information to him, and therefore evidence of due diligence.

In cases of this description, where notice is sent by mail [584] to a party living in the country, it is distance alone or the usual course of receiving letters which must determine the sufficiency of the notice. The residence of the defendant, therefore, being in the county of Alexandria, cannot affect the question. It was in proof that the post-office in Georgetown was the one nearest his residence, and only two or three miles distant, and through which he usually received his letters. The letter containing the notice, it is true, was directed to him at Georgetown. But there is nothing showing that this occasioned any mistake or misapprehension with respect to the person intended, or any delay in receiving the notice. And as the letter was there to be delivered to the defendant, and not to be forwarded to any other post-office, the address was unimpor tant, and could mislead no one.

No cases have fallen under the notice of the court which have suggested any limits to the distance from the post-office within which a party must reside in order to make the service of the notice in this manner good. Cases, however, have occurred, where the distance was much greater than in the one now before the court, and the notice held sufficient. 16 Johns. 218. In cases where the party entitled to notice resides in the country, unless notice sent by mail is suffi