After a continuance, for advisement, the opinion of the Court was drawn up by
WestoN C. J.The liability of a drawer to the holder of a bill is conditional, depending on due presentment for acceptance or for payment, and upon due diligence to give him notice, if the bill is dishonored. The affirmative is on the holder, to prove these facts, before the drawer can be charged. The defendant, though temporarily absent, had his residence in the same town, and in the same village, with the plaintiff. This fact could hardly have been unknown to the latter, who had lived there for more than a year. But if not known to him, the evidence is, that it might have been at once ascertained upon inquiry. Where the residence of the holder, and of the party to be notified, is in the same town, he should receive notice in person, or it should be left at his residence or place of business. It cannot be given through the post-office, unless he lives in a different town. Ireland v. Kip, 10 Johns. 490 ; same case, 11 Johns. 372. The same rule was recognized in the New-England Bank v. Lewis & al. 2 Pick. 125.
Notice should have been left at the house of the defendant’s father, which was his usual residence in Calais. This was not seasonably done; and upon this ground, there is a failure of proof on the part of the plaintiff. The notice left at the defendant’s residence on the first of April, was clearly too late. Upon the evidence reported, the liability of the defendant is not, in our opinion, legally made out. The verdict for the plaintiff is therefore set aside.
New trial granted.