When this case was before the court on a former occasion it was decided that, under the circumstances, the plaintiffs could not charge the defendant as an indorser, by proof that a notice from themselves had been deposited in the post-office at Shelburne Falls, directed to him as of that place. There was a post-office at the defendant’s place of residence, and a letter transmitted by mail would have reached him there. If the plaintiffs saw fit to consider him as residing at Buckland, they could have notified him by mail. If they chose, for the purposes of notice, to treat hip as a resident of Shelburne Falls, the drop-letter was not a sufficient notice, without proof that it actually and seasonably reached him. Upon an examination of all the authorities now cited by the plaintiffs, we find no case in which it is held that an indorser, living in a post town, is properly notified by a *448drop-letter, left for him in the post-office in another town, where the holder resides, and addressed to the indorser as if he also ro sided there, even though it should appear that the indorser is in the habit of resorting to the post-office in each of the two places.
It was also decided at the former hearing, that the defendant might be charged as indorser as upon a notice directly from the notary in New York, if the notice for him was returned to the post-office seasonably, in accordance with the decision in Eagle Bank v. Hathaway, 5 Met. 212. This left no question to be tried, except the single and simple one of the truth of the testimony of the cashier, that he addressed and returned the notice to the post-office immediately upon its receipt. If he did so, the plaintiffs were entitled to recover. The case of Eagle Bank v. Hathaway assumes that if so redeposited on the same day as received the notice would reach the indorser substantially as soon as if originally directed to him, and holds such notice to be sufficient. If received at night, or after business hours, and redeposited the next day, there might be some question of fact whether the delay over night made any difference. But no such question appears to be raised here.
The answer of the jury to the second inquiry put to them appears to cover the question thus presented. But from the instructions given we are led to apprehend that it was unnecessarily and improperly involved with another question, as to the probability of its earlier receipt, if otherwise directed from New York, depending upon the ordinary course of the mails between these two places. The jury were told that if notices sent from New York on the day after the protest would in due course of mail arrive at Shelburne Falls on the evening of the second day after protest, a remailing of such notices, addressed to the defendant, on the next, being the third day after the protest,' would not be seasonable. If the jury followed this instruction, they may have felt bound to answer the second question, as they did, in the negative, without regard to the time when the notice actually reached Shelburne Falls and came to the hands of the plaintiffs’ cashier. This would be applying a wrong measure of time, and a wrong lest of diligence, to the replacing of the notice in the post-office, *449The question was not what would be the proper time therefor, measured by the ordinary course of the mails from New York, but what was the proper time having regard to the actual receipt of the notice by the plaintiffs’ cashier. If he replaced the notice, properly addressed, in the post-office immediately or without unreasonable or unnecessary delay, that was enough to entitle the plaintiffs to recover, although it might have been three or more days after the protest. On this point, we feel bound to
Sustain the exceptions.