Emmerling v. Graham ( 1859 )

Cole, J.

Plaintiff alleges that the defendant, who is a Notary Public, is liable to him in the amount of the note sued upon, &c., for having neglected to give proper and due notice of protest thereof to the endorser, Kelly, whereby he failed in a suit against Kelly, to recover from him the amount of the note.

There was judgment in favor of defendant, and plaintiff has appealed.

The defendant has plead the prescription of one, three and five years.

Plaintiff cannot maintain this action, because he cannot now subrogate defendant to his rights at the date of the protest, or indeed to any rights whatever ; for at the date of the service of the citation in the suit against the endorser, and also at that of the present suit, more than five years had elapsed from the maturity of the note, and it was prescribed.

If plaintiff should be paid by defendant in place of the endorser, the defendant ought to have his recourse against the maker, but plaintiff, by his laches, has permitted the prescription to accrue in favor of the maker, and it would not be just to allow plaintiff to recover from the defendant for his negligence, when by his own he has rendered it possible for the maker to defeat the claim of the defendant.

Judgment affirmed, with costs.