Whitman v. Farmers Bank of Chattahoochie , 8 Port. 258 ( 1838 )

GOLDTHWAITE, J

— By the rules of the common law, the fact of notice, when requisite to charge the drawer or endorser of an inland bill of exchange, was necessary to be proved by witnesses in the same way as any other fact given in evidence, and could not be established by the certificate of a notary. The act of eighteen hundred and twenty-eight, section one, (Aik. Dig. 327,) enacts, that “the protest of a notary public, which shall set forth a demand, refusal, non-acceptance or non-payment of any inland hill of exchange, or other protestable security, for money or other thing, and that legal notice, ex - pressing in the said protest, the time when given of such fact or facts, was personally or through the post office, given to any of the parties entitled by law to notice, shall be evidence of the fact or facts it purports to contain, and entitle the holder of such security to the dama ges to which, by law, he may be entitled.” It is clear, that no authority is given by this act to any notary, to certify a fact independent of the protest. In the present case, the protest was legal evidence, that notices were placed in the post office at Mobile, and sent under cover, to D. Hudson, at Columbus — but it was not competent for him, or any other notary, to make evidence by giving a certificate as to the manner in which he subsequently forwarded those notices to the defendants, or sent others to them to fix their liability. It was erroneous, therefore, in the Circuit court, to admit this certificate, and the subsequent proof of an admission of liability and promise to pay the amount of the bill, did not cure the error, for we are not informed whether the one or the other mode of proving the liability of the defendants, was relied on in the court below, if the effect of this objection was to be avoided, after the admission of the evidence, it could only be by withdrawing from the jury, the certificate objected to.

2. The charge winch was requested, seems to have been this: That it was necessary, in order to fix the li' ability of the defendants, that notice should have been forwarded to them from Mobile, when the bill was protested. Such, however, is not the law. It was only incumbent on the holder of the bill in Mobile,- to give notice to those to whom they looked for payment, and each party, on receiving notice, is allowed one day to give notice to those liable to him. The general rule is given with much distinctness and precision by Chitty, in his Treatise on Bills, page 520. It may be quoted thus: “It is usual for the holder only to give notice to the person from whom he immediately received the bill or note, especially if he is ignorant of the residence of the other parties; and if so, his neglect to give notice to the other prior endorsers, and to the drawer, cannot, on any sound principle, deprive either of the endorsers of the right to proceed against the person who endorsed to him, and all prior parties, provided he in his turn has duly forwarded notice. The rule is, therefore, clearly settled, that each ■party to a bill or note, whether by endorsement or mere delivery, has, in all cases, until the day after he has received notice, to give or forward notice to his prior endorser, and so on till the notice has reached the drawer.”

The rule thus laid down by Chitty, was substantially the one given in charge to the jury, as they were instructed that it was not necessary that notice should be sent from Mobile, if the holders there of the bill were ignorant of the residency of the drawers or endorsers, but that if sent to the agent of the plaintiffs at Columbus, and by him to the defendants, it was sufficient in law to charge them, in this charge there was no error, and if the defendants below had wished one more specific and definite, it was their duty to have asked it.

For the error in admitting the evidence objected to, the judgment is reversed, and the cause remanded.