The opinion of the Court was delivered by
Weston C. JThe plaintiff is not an agent, but the indorser and holder of the note. 11. K. Baker, who was imployed by him, through Mr. Wells, to demand payment of the maker, was constituted the agent of the plaintiff, to make such demand. According to the cases cited for the defendant, an agent is not entitled to a day, before he is bound to give notice. The case finds, that in point of fact, he did, by the next mail after the demand, send notice, to the plaintiff. Although not entitled to a day, ho was not obliged either to go himself, or to employ a special messenger, lie might avail himself of the post office, and as he sent by the next mail, he made use of all possible diligence, by this mode of conveyance. Shed v. Brett, 1 Pick. 401.
It is contended, that the agent should have sent his notice directly to the defendant. Tho maker living at a distance from the plaintiff, it was competent for him to send the note to an agent for the purpose of making a demand. This being done, notice to him of the result by the next mail was, in our judgment, due diligence. It does not appear, that the agent knew where the defendant resided; and if he did, we are quite clear, that a notice sent by the agent to the defendant by *472mail would have been insufficient. In the leading case of Ireland & al. v. Kip, 11 Johns. 231, it was laid down, that if the party to be served by a notice, resides in a different place or city, then the notice may be sent through the post office, to the post office nearest the party entitled to notice. To this rule there must necessarily be exceptions. It could not apply to the case of the defendant, who lived secluded in a part of the country, but just beginning to be reclaimed from the wilderness, twenty miles from any post office.
As the plaintiff was not at liberty, under the circumstances, to avail himself of the mail and as it does not appear, that there was any other ordinary mode of conveyance to the defendant’s residence, no other alternative remained, but to notify him in person, or to send a special messenger. The plaintiff received his notice the afternoon or evening of the first of April. The Judge instructed the jury, that it would be seasonable, if he commenced exertions to give notice the next day. And in our opinion, this would be due diligence on his part. The jury have found this fact. It is said, this is against the evidence, as his letter of notice is dated at Lincoln, his own residence, on the third of April. The jury might have deduced from the distance and from the state of the travelling, upon which all the evidence is not reported, that the letter may have been misdated. These facts must be taken into the account on the question of due diligence ; and they were proper for the consideration of the jury. We perceive nothing in the ruling of the presiding Judge, which calls for correction ; •and we are not satisfied, that the verdict is against evidence.
Judgment on the verdict.