Bank of the Commonwealth v. Mudgett

Inge ah Ait, J. (After discussing some unimportant questions.) The material question in the case is, as to the proper service of the notice of protest on the defendant Mudgett. The certificate of the notary was that he served the notice of protest on the. defendant “by leaving the same at his desk in the Hew York custom house, he being absent therefrom, with a person in charge, said notice being directed to said Mudgett.” The law required such notice to be served personally on the indorser, or to be left at his place of business, with some one in charge on his behalf. The person who indorses notes is held responsible for notices so left at his place of business, because it is his duty, in case of absence, to leave some one in charge thereof. (3 Seld. 266.). The doubt arises from the fact of the notice being left with a person" in charge at the desk occupied by the defendant, in the Hew York custom house. There is nothing to show that such person was there ■ acting for Mudgett or authorized to receive any papers for him; nor is there any thing from which it can be inferred that the defendant had any right to appoint any one to do Ms work, or to leave any one there in charge of the business to be done there. On [666] the contrary, if a deputy or clerk is absent, his place would ordinarily be supplied by some other employee of the government, and not by a person selected by the defendant. [New York General Term, April 2, 1866. The act of 1857, chapter 416, also has provided a mode o.f service through the post office, by which any difficulty as to finding the indorser is obviated; and which renders it less necessary to resort, to a doubtful mode of service; than might have been theretofore deemed necessary. ■ • For these reasons I think there may be some doubt whether such a service as was made in this case is sufficient to charge the indorser. ' The Court of Appeals, however, in several cases of late have been disposed to relax the strictness which heretofore has existed, both as to the contents of the notice of protest; and as to the service of such notice, and we- are of the opinion that it will be better to consider this service as prima facie sufficient, in the absence of any proof to the contrary. My brethren also are of the opinion that the service would be sufficient as having been made at the place of business of the defendant. In regard to the liability of Booth, we think the evidence shows that the firm had beén dealers with the bank in their copartnership business. As such dealers with the bank, their character as partners was known to the bank, and.it was in the bank book of the firm that the note was entered as having been discounted on their behalf, the signature of the firm being indorsed thereon. The relation of the defendants Wilson and Booth to the bank was such as to require notice of dissolution to be given to the bank; and the advertisement of dissolution in the paper was Hot sufficient. The judgment is affirmed with costs. Geo. G. Barnard, Ingraham. and Sutherland, Justices.]