Newberry v. Trowbridge & Owen

By the Court, Willson, J. The first question presented by the bill of exceptions, in this case, relates to the notice of protest. The decision of this Court in the case of Platt vs. Drake (1 Doug., 296), settled the law in regard to sufficiency of notices of protest as definitively and permanently as this Court can ever settle it. We cannot be called upon now to overthrow the doctrine settled by that case, which has been-recognized and acquiesced in for twelve years or more, in the business transactions of the State. Upon this question, therefore, the Court are disposed to adopt the rule, stare decisis. The next exception relates to the sufficiency of the service of the notice of protest. This point was elaborately argued, and a great number of authorities were cited as bearing upon it. There is a decided conflict in the authorities in reference to the proper mode of serving a notice of protest. Where the endorser and endorsee reside in the same place, the service may be personal, or may be left at the place of business, or the domicil of the endorser. The deposit of the notice of protest in the present ease at Detroit, was not for the purpose of transmission by mail, but was merely a drop letter. This mode of serving the notice was not sufficient. (Ransom vs. Mack, 2 Hill, 587; Sheldon vs. Burnham, 4 Hill, 129; Ireland vs. Kipp, 10 J. R., 490; Ireland vs. Kipp, 11 J. R., 231; La. St. Bank vs. Rowell, 9 Martin, 267; Patrick vs. Beazley, 6 How. Miss., 609; Hogatt vs. Bingham, 7 Ib., 570; Glenn vs. Thistle, 1 Robinson La., 572; Davis vs. Gowan, 19 Maine, 447; Clay vs. Oakley, 8 Martin, 446; [396] Smedes vs. Bank of Utica, 20 J. R., 372.) Mr. Justice Trotter, in the case of Patrick vs. Beazley, uses the following language, which is pertinent to this case : “The Courts have manifested, a constant jealousy of admitting a relaxation of the rule which requires personal service of notice, and have never permitted it, except in cases of strong necessity for the convenience. But this necessity, under which transmissions by mail are allowed, can never be said to exist where the parties reside in the same town or place, and therefore, when that is the case, Courts will not dispense with personal notice. But it is urged, that this principle does not apply where the endorser resides beyond the limits of the town, when notice through the post office is sufficient, if it is the post office nearest his residence. This argument assumes a distinction which has not been taken in the case, which has just been noticed, of Scott and others vs. Lifford, where the. allowance of the use of the penny post was not made to depend upon the question, whether the endorser resided in the City of London, or its near neighborhood. And the effect of that decision is manifestly at war with any such discrimination, for it puts the residence in the near neighborhood of the city upon the same ground with a residence in the city. To permit this distinction, would necessarily expose parties entitled to notice to an uncertain, and very often to a capricious and arbitrary rule, extremely embarrassing to Courts in making an application of it, and therefore injurious to commercial pursuits. It is often very difficult to determine the px’ecise limits of towns, where they have not been incorpoi'ated ; and in that case, different opinions may exist as to where they cease, axxd the country begins. In cases of cities or incorporated towns, a surer criterion is fixed by the boundary line, and yet a moment’s reflection must satisfy every one, that the rule would not be less exposed to exnbarrasment, if not ridicule; for it may so happen, and in large commercial towns such will no doubt often ,b© the case, that a party living [397] within the environs of the place may yet be beyond the actual boundary line of the Corporation, and so lose a privilege to which lie would be otherwise clearly entitled. And, as was very properly said by the counsel for the defendant, it may turn out that two persons may be subject to a different law who yet reside within twdnty steps of each other, the one within, and the other beyond the line: And again, one who resides two miles from the holder may claim personal notice, while another, living perhaps within fifty yards of him, must take his chances of the post office. . Such a discrimination appears to us to be without reason or foundation. The obvious meaning of Courts, when they require personal notice, if the endorser lives in the same town or place, is, the same immediate neigborhood, whether it be town or country. It was evidently so understood by the Judges in New York, in Kipp’s case, and has been so considered by the Supreme Court of Tennessee in two cases like the one at bar. Our attention was called on the argument, by the counsel for the defendants in error, to a number of respectable authorities establishing a contrary doctrine. But, after a careful examination of all the authorities cited, we think the true rule is, and should be, that in the service of notice of protest by mail, the post office can be used as a mode of transmission, and not as a place of deposit. We are, therefore, of the opinion that the judgment below must be reversed, with costs to the plaintiff in error. Present, Willson, Bacon, Green, Johnson, J. J.