McMurtrie v. Jones , 3 Wash. C. C. 206 ( 1813 )

WASHINGTON, Circuit Justice

(charging jury!. There is no weight in two of the objections made to the plaintiff’s recovery. It is of no consequence, whether this note was made in consideration of goods sold to the maker by the defendant, as the agent of Bowerbank & Co., or on his own account; or whether the endorsement was made upon a consideration, in fact, passing from that house. If the defendant acted as the agent of that company, this circumstance might make that company liable, if they were the defendants: but still, the defendant is liable on his endorsement. So, in respect to the note of Isaac Jones, which was passed to the plaintiff by the maker of this note, as a collateral security; — no laches are imputable to the plaintiff, in respect to that note; it being proved, that the maker became insolvent before it became due; and the note is in court ready to be delivered to the defendant.

As to the question of notice, there is more difficulty. At the time the assignment was made to the plaintiff, the defendant resided in Philadelphia, as a boarder, at Mrs. Hand’s. A few weeks before the note became due. the defendant left Mrs. Hand’s and went to New-York, with an intention to embark for England, which he carried into execution. This was known to Longstreth, but it does not appear that it was known to Mrs. Hand, to the plaintiff, or his agent Mr. Craig, or to any one else; and it is worthy of remark, that it is proved, that before this final removal, he was frequently absent from this city upon visits to the Eastern states. Generally speaking, notice to the endorser ought to be given, although he should be beyond sea, if the place of his residence is known; and a reasonable diligence to find out his place of residence ought to be used, of which you are the proper judges. But under all the circumstances of this case, it appears to the court, that the notice left at the known place of residence of the defendant, before his final departure, was sufficient. The court give no opinion respecting the custom which has been mentioned, and respecting which some evidence has been given, as it does not appear to be sufficiently proved.

Verdict for plaintiff.