Boehme v. Carr , 3 Md. 202 ( 1852 )

Mason, J.,

delivered the opinion of this court.

The note which forms the basis of the present action is' in these words, viz:

“Sixty days after date I promise to pay D. S. Carr, or order, three hundred dollars for value received. /" 1. S'

Jno. Spear Smith.”

This noté' was endorsed by Mr. Carr, the appellee in the present suit, for the accommodation of the drawer, who passed it over to the appellant. Upon maturity it was protested for non-payment. The protest, after stating demand, refusal to pay, &c., adds, “on the same day I addressed a written notice to the endorser of the said promissory note, informing him it had not been paid by the maker thereof, and that he woidd be held responsible for its payment, and left it with his agent, John C. Van Wyck, Esq.”

The court below rejected a number of prayers which were offered in the progress of the trial, but finally gave the jury the following instruction: “ That there is no sufficient evidence in the case to establish such notice to the defendant of the dishonor of the note sued for in this case to enable the plaintiff to recover in this action.”

From this instruction the present appeal was taken. The sufficiency of the notice of protest is the point, therefore, which is directly presented by the decision of the court below.

We regard this question as settled by the cases of Sangston vs. Graham, 1 Md. Rep., 59, and Hunter vs. Van Bomhorst & Co., ibid., 504, and as they are conclusive of the present case, we must affirm the judgment. In both those cases the notice of protest was deemed insufficient. The notice in this case is indeed identical with that in Hunter vs. Van Bomhorst & Co., except that the words “by the maker thereof, ” after the word “paid,” appear in this and not in the other. But it will be-readily seen, that the addition of these words does not vary the question. They do not of necessity create the inference-of demand on, and refusal by, the maker, which in all cases are facts necessary to be communicated to the endorser, in some form or another, in the notice of protest.

There are other questions raised in the present record which-we do not feel ourselves required to decide. By the act of 1831, ch. 319, it is true this court are required to decide all the exceptions which shall appear to have been taken by either side in the trial below. Our view is, that when a judgment is affirmed in this court, the act of Assembly does not apply. It was designed only to relate to cases sent back under a procedendo, and thus to prevent subsequent litigation and appeals in the same case, growing out of the questions presented but not decided in the first appeal. But in all cases where the controversy is finally terminated by the decision of any one or more* of the points raised in the record, it is not necessary for this court to decide the remaining questions. These views, we think, are sustained by the case of Winter vs. Donovan, 8 Gill, 376, and the case of Owings vs. Emory and Gault, decided at the present terna, (ante, 178.)

Judgment affirmed,.