Marston v. Bank of Mobile , 10 Ala. 284 ( 1846 )

COLLIER, C. J.

If a single witness testifies fully and explicitly to the existence of a usage, and is not contradicted by opposing evidence, we should think that it could not be "assumed as a-legal conclusion that the proof <was insufficient. But if the law be otherwise, the error in -the refusal to charge the jury was not prejudicial to -the defendant. When this cause was here at a previous term, we said it was the duty of the notary to inform the holder of paper placed in his hands for demand and protest, what he had done, with all reasonable dispatch, if he has not given notice ; and if he undertakes to perform this service, he must perform it in such a manner.as not to prejudice the holder’s rights. Here the defendant, as he affirms in the protest, attempted to give notice to Newbold the only solvent indorser, but did not do it in such manner, as to make the act effectual in law; nor did he inform the plaintiff what he had done, that the latter might supply its defects. In this condition of the case, it did not devolve upon the plaintiff, to adduce further evidence in order to establish the notaries default; but it was incumbent upon the latter to excuse himself. This being the law, the proof of usage was altogether unnecessary; and even if irregular, or insufficient, could not have assisted the plaintiff or prejudiced the defendant.

In respect to the indemnity which Newbold had received from the makers of the note, it appeared that after the protest for non-payment, they showed the nóte to him, stating that it had been paid, and asking that the indemnity might be released; and under that impression, he complied with their request. In our previous decision, we said, that under these circumstances Newbold might very well have inferred, that the representation was true, and thereby induced to part with the indemnity; consequently it furnished no excuse for the failure to advise him of the non-payment of the note. Whether the knowledge of the plaintiff that Newbold was indemnified, could have relieved the defendant from the obligation to give notice, is in the present posture of the case, an immaterial inquiry, as there was no proof that he was informed of of it, and the jury have negatived the fact. If the knowledge of the plaintiff upon this point, could not change the rights and liabilities of the parties, as we incline to think, then the charge was more favorable to the defendant than he was entitled to ask. But apart from this, considering the evidence in the cause, the second charge prayed should not have been given in the terms in which it was asked, without adding a qualification as to the effect of the release of the indemnity.

There is no available error in the judgment of the circuit court, and it is consequently affirmed.

Goldthwaite, J., being interested did not sit in this cause.