Boit & McKenzie v. Corr , 54 Ala. 112 ( 1875 )

MANNING, J.

A promissory note made payable “ at any bank in Savannah, Georgia,” may be presented for payment at maturity at any bank in that city; and if protested for non-payment, and notice thereof be in due time sent to an indorser, he is liable as such to the holder.—Page v. Webster, 15 Maine R. 249, 253; Langley v. Palmer, 30 id. 467; Jackson v. Packer, 13 Conn. 343; Mackden Bk. v. Baldwin, 13 Gray, 156. The certificate in the protest of the notary by whom it was presented for payment, that he sent notices of the presentment, non-payment, &c., to an indorser, is evidence that such notice was given.—Revised Code, § 1089.

The protest offered as evidence in this cause does not expressly say that the Southern bank of the State of Georgia mentioned therein, was in the city of Savannah, but begins thus: “ United States of America, city of Savannah Georgia.” It then sets forth the office of the maker of it, as a notary public, his residence in the city of Savannah, his presentment of the note for payment at the Southern bank of the State of Georgia, the refusal to pay, his protest thereupon, and sending of notice to the indorser, all on the day when the note matured, and concludes as follows: “ Thus done and protested in the city of Savannah aforesaid, this the 15th day of October, &c., the day on which the note became payable.

The introduction of this protest was objected to by counsel for appellee, and excluded by- the court, on the sole ground (as appears) that it did not expressly certify that the Southern bank of the State of Georgia was in the city of Savannah; to which exclusion plaintiffs’ counsel excepted. Plaintiffs’ counsel then offered the protest in evidence in connection with evidence going to show that there was located in the city of Savannah, at the date of said note and of the protest, a bank of the name of “the Southern bank of the State of Georgia,” to which the defendant objected, and the court sustained the objection, and refused to permit this evidence to go to the jury, and plaintiffs excepted.

Plaintiffs then offered to prove by parol evidence to the jury, that at the time when said note was made, and when it matured, and when it was protested, there was a bank in said city of Savannah, of the name of the Southern bank of the State of Georgia, which also was objected to by defendant, excluded by the' court, and the exclusion excepted to.

Thereupon plaintiffs, claiming the benefit of a bill of exceptions, took a non-suit, with notice that they should appeal to this court to have it set aside, and judgment was rendered against them for costs.

The errors of the court below are too palpable to admit of argument.

The non-suit in the- city court is set aside, its judgment against appellants reversed, and the cause remanded.