Hogatt v. Bingaman , 8 Miss. 565 ( 1843 )

Mr. Justice Clayton

delivered the opinion of the court.

The only question in this case is, whether it is sufficient to give notice through the post office of the dishonor o.f a note or bill of exchange, when the parties live in or near the same town, and use the same post office; or, in other words, when the post office is used as a place of deposite, not as a medium of transmission.

This point has heretofore been repeatedly before the courts of this state, and they have, unfortunately, given contradictory decisions. The first case reported is that of Stamps v. Brown, Walker 576, in which it was held that such notice was sufficient. The case of Wilcox & Fearn v. McNutt, 2 How. 784, next came up. It was there held that the notice was insufficient, and that the custom of the notaries at Vicksburg to give notice in that way could not alter the law. The next case in order is that of Patrick v. Beazley, 6 How. 609, in which the same doctrine is held as in 2 How., but by a divided court.

The question is now again presented to us, and a change of the decisions in these two last cases is most earnestly pressed on us, upon the ground that long usage and practice under the first decision had consecrated it, and any departure from it will cause the loss of millions of property. These arguments address themselves with persuasive force to our minds, and had so much weight with the judge who dissented in the case of Patrick v. Beazley that he delivered a very able opinion in their support. A favorite maxim with one of the most powerful modern statesmen was, “ne movete quieta” — do not disturb things that are settled; and this maxim deserves great weight with every judge. It should require very controlling considerations to induce any court to break down a former decision and lay again the foundations of the law.

Yet, in the case before us, little room is left for the influence of reasons like these. The decisions already stand opposed to each other. Six years after the first decision was made, a different rule was adopted. Five years have since elapsed, and this court has already again declared its intention to abide by the rule last adopted. It would certainly not tend to add stability to our decisions, and to give permanence and duration to our recorded opinions, were we now to retrace our former steps and go back to the rule in Walker.

The case of Patrick v. Beazley upon its face shows that it was decided upon mature deliberation. Most of the reported decisions were examined, and the principle established vindicated by showing it to be in accordance with the current of decisions. This conclusion is sustained by a very recent case in 2 Hill’s N. Y. Rep. 590, in which this often litigated question was discussed. The supreme court of that state, more conversant with commercial law in all its bearings than any other in the union, without dissent say, “Whether mail service of notice is good or not, does not depend upon the inquiry whether the person to be charged resides within the same legal district; but upon the question whether the notice may be transmitted by mail from the place of presentment or demand to another post office where the drawer or indorser usually receives his letters and papers ” See, to same effect, 19 Maine, 447.

Were the question an open one in our state, I should be of opinion that the rule thus laid down is correct; and, as it accords with the two latest decisions of our highest tribunal, I feel bound to give it my concurrence.

The judgment of the court below is affirmed.

Judge Sharkey concurred.