Swezey v. Lott.

(2 R. S., 533, § 64; Acker v. Finn, 5 Hill, 293.) I do not find any provision of law which would entitle the plaintiffs, who had no property, general or special, in the goods, to an assignment of the undertaking. By an arrangement between them and the defendant, they might, no doubt, have taken upon themselves the burden of prosecuting the undertaking, and it would not have been unreasonable in them to have done so. But, in point of law, the further duty of pursuing the remedy on the undertaking belonged to the defendant, as sheriff, and this duty he neglected for more than a year after the return of the execution against Mary Turner. There is nothing in the case to show that the sureties were not abundantly responsible, or that the money could not have been collected, if the defendant had enforced the undertaking.

It seems that, at common law, an action on the case would not lie against a sheriff for an omission of duty in the execu tion of process of this kind; but the statute has given an action to the creditor against him for not returning the execution, and the settled doctrine of the courts is, that where it has not been returned, he is, prima facie, liable for the debt, but may mitigate the damages by showing that the defendant had no property of which the judgment could be levied. Where, as in this case, there was sufficient property, and he has not made the money nor returned the execution, nor shown any sufficient reason why he has not done so, he is chargeable with the debt. (Bank of Rome v. Curtis, 1 Hill, 275; Pardee v. Robertson, 6 Id., 550; Ledyard v. Jones, 4 Sandf. S. C. R., 67; S. C., 3 Seld., 550.) It has been urged that it might happen that an action by the defendant against the sureties would be fruitless, as they may have become insolvent, or may have justified fraudulently, and that the sheriff might thereby incur the expense of an action for which he would have no indemnity This might, no doubt, so turn out; but it is one of the burdens of the office which the defendant assumed, and for which he can only be compensated by the other advantages which the office confers. The duty of prosecuting the undertaking to judgment and execution was as obligatory as the levying upon

CASES IN THE COURT OF APPEALS.

485

The Farmers' Bank of Bridgeport v. Vail.

the defendant's property in the first instance. Upon the proof in this case there was nothing to raise a doubt as to the result of such a prosecution, nor any reason for calling upon the plaintiffs to furnish an indemnity against any possible loss which might be sustained.

There was no ground upon which the counterclaim could be allowed. Upon the comprehensive terms of the bond, it is true that the obligors might be liable for the expenses of the suit, though the judgment was against Mrs. Turner; but until the remedy on the undertaking shall be shown to be fruitless, it cannot be said that the defendant has suffered any loss or damage in consequence of her claim to the property or her action for its recovery.

I am in favor of reversing the judgment of the Supreme Court, and affirming that of the City Court.

All the judges concurring,

Judgment accordingly.

THE FARMERS' BANK OF BRIDGEPORT v. VAIL.

The indorser of a promissory note dishonored on Saturday is duly charged where the agent for its collection, not being able to ascertain the indorser's residence, mails notice of its non-payment, on the following Monday, to his principal; and the principal, on the next day after receiving it, mails notice to the indorser.

It is immaterial whether or not the holder of the note appears upon it as indorser.

Action by indorsee

APPEAL from the Supreme Court. against indorser on a promissory note. It was dated New York, October 24, 1854, and was for $1,300, payable at the Broadway Bank, at three months, to the order of the defendant. The only question was, whether the defendant had been regularly charged as indorser. The note matured January 27,

The Farmers' Bank of Bridgeport v.. Vail.

1855, which was Saturday. On that day the Broadway Bank, to which, as it is to be inferred from the evidence, it had been forwarded for collection, placed it in the hands of a notary, who caused it to be presented for payment, and, payment being refused, the notary, on the succeeding Monday, put two notices of protest in the New York post-office, one addressed to the defendant, inclosed in an envelope to the plaintiff at Bridgeport, and the other to the defendant in New York. There was nothing on the note to show where the defendant resided; and the notary did not know his residence. Before mailing the notices, he made inquiries as to such residence, but was unable to ascertain it. He, in fact, resided near Sing Sing, and his place of business was in that village, and he was president of a bank there. On Tuesday, January 30, the plaintiff inclosed the notice of protest which the notary had sent him, and placed it in the post-office at Bridgeport, properly directed, and the defendant received it immediately afterwards. It did not appear whether the plaintiff indorsed the note. The referee before whom the cause was tried held that notice of protest was properly given, and the plaintiff had judgment, which having been affirmed at general term in the first district, the defendant appealed to this court. The case was submitted on printed points.

M. L. Cobb, for the appellant.

Lyon & Porter, for the respondent.

WRIGHT, J. There is but a single question attempted to be raised in the case, viz.: whether reasonable diligence was used in notifying the defendant of the non-payment of the note. I have intentionally used the expression, attempted to be raised, for it is to be doubted, as the case and exceptions are present. ed, whether the question of diligence can or should be considered. The question is one of law, when there is no dispute as to the facts. There was no dispute in this case, but instead of presenting the question to the referee, on a motion for a

The Farmers' Bank of Bridgeport v. Vall.

nonsuit, or in some other way, it seems not to have been distinctly or definitely raised. After evidence had been given by the plaintiffs, tending to show a demand, protest and notice of non-payment, the note was offered in evidence, the defendant objecting on the ground that the proper proof of demand and notice of protest had not been made. The referee did not then pass upon the objection, but subsequently, and after evidence had been given as to demand and protest, the note and certificate of protest was received in evidence, the defendant's coun sel only interposing a general objection. There was no objection that the note ought not to be read in evidence, on the ground of want of diligence in giving notice of dishonor to the indorser, nor was the referee requested, in any stage of the trial, to pass upon that question as one of law. He has deci ded it as one of fact against the defendant.

But if the question of diligence is open, and to be considered as one of law, I see no difficulty in sustaining the judgment of the referee. When the note fell due it was in the Broadway Bank, the place where payment was to be demanded. It is to be inferred that it was indorsed, by the plaintiffs, to the Broadway Bank for collection; the latter bank was certainly their agent for that purpose. The Broadway Bank employed their notary to demand payment and, in the event of refusal, to protest the note and give notice of its dishonor. The plaintiffs are to be regarded as a party to the paper, for all the purposes of receiving and giving notice to charge the prior parties. (Edwards on Bills, 622; Bank of the United States v. Davis, 2 Hill, 451; Clode v. Bayley, 12 Meeson & Welsb., 51.) The note was protested, after banking hours, on the 27th of January, which was Saturday. The notary had, until the next day, that is, the next business day, which was Monday, the 29th, to give notice of non-payment. When the third day of grace falls on Saturday, the notice of non-payment need not be given until the next Monday. (Williams v. Matthews, 3 Cow., 252.)

The defendant appears to me to have been regularly notified. Due diligence, within legal rules, was used.

The Farmers' Bank of Bridgeport v. Vail.

When an indorser intends charging previous indorsers by consecutive notices, and they reside in different places, due diligence will have been used when notice is sent the day fol lowing that on which it is received. The rule is the same though the paper is indorsed from one to another agent for collection merely. Each of such indorsers is to be regarded as a party for all the purposes of charging prior parties. In Scott v. Lifford (9 East., 347), the plaintiff, having become the holder of a bill of exchange, had placed it in the hands of his bankers. On the 4th June, when the bill became due, a clerk of the bankers presented it for payment, and it was dishonored. On the 5th they returned it to the plaintiff, who, by letter put into the two-penny post on the 6th, gave notice to the defendant (the drawer), of the dishonor; the plaintiff living in London, and the defendant at Shadwell. It was held that reasonable diligence had been used.

But, even if the principle of charging prior parties by consecutive notices, from one to the other, did not apply, and the plaintiffs are to be regarded as the holders of the note, and not the Broadway Bank, when it became due, and the notary, as the agent of the plaintiff, and not of the latter bank, in giving notice of the dishonor, I think there was no want of reasonable diligence. The note purported to have been made at New York, and was payable at a bank in that city. The notary was ignorant of the place of residence of the defendant, and the latter had not left any notice or memoranda with any one to indicate it. The referee finds that the notary made inquiries for the defendant's place of residence, but was not able to ascertain where it was; whereupon he deposited in the postoffice, at New York, a notice directed to him at New York, and mailed another notice, directed to him under an inclosure to the cashier of the plaintiff's bank at Bridgeport. This amounted to due diligence, unless we are to assume that the plaintiffs well knew where the defendant resided when the paper was about to mature, and, in anticipation of default in payment, by the maker, on presentation, were bound to com