The opinion of the Court was drawn up by
Weston C. J.In Smedes v. The Utica Bank, 20 Johns. R. 372, it was held, that if the indorser lives in a different town, from *384that in which the demand is made, notice must be forwarded to’ him on the day of the demand, or the day after, and by the next mail. In Darbishire v. Parker, 6 East, 3, the Court advert to' the rule, that notice to the indorser, must be sent by the next mail after demand, but qualify it by saying, that it must be by the next’ practicable or convenient mail, but if delayed until the next day,* it must be sent by the mail of that day. And this case is cited with approbation, in Mead v. Engs, 5 Cowen, 303, cited for the' plaintiff. In Lenox v. Roberts, 2 Wheat. 373, the Supreme Court of the United States, lay down the rule to be, that notice of the default of the maker, upon due demand, must be put into the post-office early enough, tó be sent by the mail of the succeeding day. And in Mitchell v. Degrand, 1 Mason, 176, Story J. holds, that notice must be sent to the parties intended to be charged', by the next practicable mail, after demand.*
In Whitwell & al. v. Johnson, 17 Mass. R. 449, cited for the plaintiff, the Court say, that notice to the indorser, put into the post-office the next day after demand, is early enough, if put in- in-season to go by a mail of that day. To the same effect substantially is the case of Debree v. Eastwood, 3 Car. & Payne, 250. And we are satisfied, that the ruling of the Judge below was in corn-' formity with mercantile law, as settled at the present day.
With regard to the communication between the Judge and the' jury,- it was in open Court, in the presence of counsel, and differs,therefore, materially from the case of Sargent v. Roberts & al. 1 Pick. 337, which took place after the adjournment of the Court*.
Exceptions overruled.*