Sydnor v. Gascoigne , 11 Tex. 449 ( 1854 )

Lipscomb, J.

The only point presented is, that notwithstanding our statute (Art. 2528, Hart. Dig.) dispenses with protest and notice, in fixing the liability of an indorser, it does not dispense with a demand. This question cannot now be considered an open one in this Court. In Cartwright v. Roff, (1 Tex. R. 78,) it is said in the opinion of the Court, that the statute dispenses with a demand, protest and notice. In Hutchins v. Flintge & Ralston, it is expressly decided that the statute dispenses with demand, protest and notice. (2 Tex. R. 473.) It was again so decided in Frost v. Holmes. (8 Tex. R. 29.) We are not disposed to open the question. The rule of stare dioisis, so far as it applies to decisions of our own Court, should not be disregarded, but on the fullest conviction, that the law had been settled wrong; and even then we should pause and consider how far the reversal would affect contracts and transactions entered into and acted upon, under the law of the Court.

If, however, the question was an open one, for the first time presented for our decision, we cannot perceive how we could decide differently, without disregarding the language of the statute. It is as follows, i. e.: “ That the holder of any “ bill of exchange or promissory note, assignable or negotiable “ by law, may secure and fix the liability of any drawer or “ indorser of such bill of exchange and every indorser of such “ promissory note, without protest or notice, by instituting “suit, &c.” The demand, eo nomine, is not mentioned, “but the demand is the main constituent of a protest, and “ without it there could be no protest. To dispense with “ the protest, then, 'is to dispense with the elements of which “ it is composed. There can be no doubt but the Legislature intended, wisely or not is not for ns to say, to substitute a statutory diligence, in the place of the diligence required by the law-merchant. The counsel for the appellants consented that the statute should not receive a different construction from an agreement of the parties to waive protest and notice; and authority is referred to, when such waiver is not regarded as dispensing with the necessity of a demand. The authorities are not very satisfactory on this question, and they have been pretty extensively discussed in Coddington v. Davis, (3 Denio, 16,) in which it was decided, that when a note was addressed by the indorser to the holder, “ you need not protest T. B. C’s “ note due, &c., &c., for &c., and I will waive the necessity “ of protest thereof;” it was sufficient to dispense with a presentment and notice of non-payment, and that the letter itself, without the other circumstances, would have been a valid waiver of a demand-and notice. I believe that an examination of all the -authorities would show, that wherever it was decided that a waiver of protest and notice did not dispense with a presentation or demand, it was so decided, from evidence of the meaning of the parties attached to the waiver, derived from local custom and other attending circumstances. If there was no express legislation, dispensing with the necessity of protest and notice, I would not be disposed to question the admissibility of such evidence; but where there is a statute on the subject, it must override custom and the course of business; the operation of the statute is uniform, but custom may be different in different localities. The judgment is affirmed.

Judgment affirmed.