Bank of Mobile v. Marston , 7 Ala. 108 ( 1844 )

COLLIER, C. J.

— The charge to the jury impliedly admits the truth of all the evidence adduced, and the inferences legitimately deducible therefrom, and affirms, that the plaintiff is not entitled to recover. It is needless to consider at large the duties of a notary, in respect to giving notice to the drawer or indorsers of commercial paper, placed in his hands for demand and protest. We think it clear that he should at least inform the holder whathe has done, with all reasonble dispatch, if he has not given notice ; and if he undertakes to perform this service, he must perforin it in such manner as not to prejudice the holder’s rights. In the present case it was shown to have been the usage in Mobile, for notaries to give notice to the indorsers of the non-payment of paper, such as that in question; further — that the defendant did actually attempt to give such notice. This being the case, he should have given it in such manner that it would have been effectual in law. The certification in the protest upon this point is made evidence by statute, yet it is not conclusive; but it is competent for an indorser to prove that he could not have received a personal notice, because he was elsewhere and had no ■ agent: he may also show that he had no place of business at which a notice could have been left, or any other fact which negatives the recital in the protest.

Even if the holder was furnished by the notary with the papers, so as to have enabled him to have given due notice to the proper parties, the affirmation of the protest that the in-dorsers had been notified, showed this to have been unnecessary, if true. And he was authorized to give all credence to the recital, and look to the notary to repair any injury that might result from its falsity.

In Stephenson v. Primrose, 8 Porter’s Rep. 166, we state, as a deduction from the authorities, that when an indorser, before the maturity of the note, obtains an assignment of all the maker’s estate, or of so much as is necessary to indemnify him against the consequences of his indorsement, the maker’s default will fix the indorser’s liability, without the previous steps of a demand and notice. [See also Story on bills, 359.] We will not stop to inquire, whether the indemnity about which the witness spoke was ample, or covered all the property of the makers of the note; or rather, whether this was not one of the inquiries of fact that should have been submitted to the solution of the jury. When the makers of the note showed it to the indorser, stating that it had been paid, and asking that the indemnity might be released, the latter might very well have inferred the truth of the statement from the possession of the paper, and complied with their request. Under such circumstances the holders of the note could not claim as against the indorser, any benefit from the indemnity, or set it up as an excuse for the omission to give notice of non-payment. . And it is not a legal conclusion, from the possession of the note that the makers had paid it, and again put it in circulation in fraud of the indorser’s rights.

Whether a judgment against Newbold would have resulted in the collection of the amount of the note, is a matter which could not determine the plaintiff’s right to a verdict in the case at bar. If he was insolvent the plaintiff would be entitled to nominal damages, if the facts established a breach of duty on the part of the defendant; beyond this, the recovery would have been graduated by the loss which the defendant’s neglect occasioned. In estimating which, the solvency of the indorser would of course be a material inquiry.

It is unnecessary to consider this case at greater length.— The Bank of Mobile v. Huggins, 2 Ala. Rep. 206, lays down principles, which, if observed, will most probably lead to a correct decision upon another trial. We have only to add, that the judgment of the Circuit Court is reversed, and the cause remanded.