US SUPREME COURT DECISIONS

In the case of a protested note, it is not necessary for the holder himself to give notice to the endorser, but a notary or any other agent may do it.

The object of the rule which requires the nonce to come from the holder is to enable him, as the only proper party, either to fix or waive the liability of endorsers.

Where a note was handed to a notary for protest by a bank and it did not appear whether the bank or the last endorser was the real holder of the note, and the notary made inquiries from the cashier and others not unlikely to know, respecting the residence of the prior endorsers, and then sent notices according to the information thus received, it was sufficient to bind such prior endorsers.

If the last endorser was the holder, the cashier of the bank was his agent for collecting the note, and the evidence showed that in fact the last endorser knew nothing more than the cashier.

The cases on this subject examined.

The facts being found by a jury, the question whether or not due diligence was used is one of law for the court.

If due diligence is used in sending the notice to the endorser, it is immaterial whether it is received or not.

This was action brought by the endorsee (Robinson) against an endorser (Harris) of a promissory note.

Robinson the plaintiff below, was a citizen of the State of Tennessee, and Harris a citizen of Alabama.

The note was as follows.

"$1,600 0/00. Eight months after date, we promise to pay Matth. Burks, or order, sixteen hundred dollars, payable and negotiable at the Planters' Bank of the State of Tennessee at Nashville, for value received. Dated in Lincoln county, Tennessee, 20 November, 1837."

"[Signed] JOHN P. BURKS & Co."

"[Endorsed] Matth. Burks, Benj'n D. Harris J. Robinson."

The note not being paid at maturity, Robinson, in September, 1839, brought his action against Harris in the District Court of the United States for the Northern District of Alabama, which, after several interlocutory proceedings, came on for trial at May term, 1843.

The jury, under the instructions of the court, found a verdict for the plaintiff in the sum of two thousand and sixty-two dollars and sixty-six cents. It is impossible to give a clear idea of the instructions of the court without reciting all the circumstances of the case to which the instructions referred. They are all stated in the bill of exceptions, which is as follows.

"The Bill of Exceptions"

"

I

"for the Northern District of Alabama"

"In this case, the plaintiff brought his action against defendant

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as endorser of a promissory note, and introduced the deposition of Alpha Kingsley, which is as follows."

"Deposition of A. Kingsley"

" The said Alpha Kingsley, being about the age of sixty years and being by me first carefully examined, cautioned, and sworn to testify the truth, the whole truth, and nothing else but the truth, makes oath, deposeth, and saith that he resides in the City of Nashville in the State of Tennessee, and more than one hundred miles from Huntsville aforesaid, the place of trial of this cause; furthermore he saith I am now a notary public of Davidson County in the State of Tennessee, and was such on 23 of July, 1838, duly qualified according to the laws of said state; that on that day there came into my hands, as notary public, a promissory note, a true copy of which is herewith enclosed, marked A, and is made a part of this my deposition; that at or about three o'clock of the said 23 July, 1838, I presented said promissory note at the counter of the Planters' Bank of Tennessee, at Nashville, where the same was payable, and demanded payment thereof, and was answered by the teller of said bank that it would not be paid, whereupon, as notary public aforesaid, I did protest said promissory note, as well the drawers as the endorsers thereof, and duly recorded the same in my notarial book, and on the evening of the said 23 July, 1838, I deposited in the post office at Nashville, Tennessee, in time to go by the first mail leaving Nashville after said demand and protest, notices of said demand and protest, directed to John P. Burks & Co., Matth. Burks, and Benjamin D. Harris Madison County, Alabama, to each separately; a copy of the notice so sent to Benjamin D. Harris is herewith to be enclosed, marked B, and is made a part of this my deposition. I was not, when these notices were forwarded, acquainted with the residence of any of the parties thus protested, or their nearest post office, and I made inquiry of those I thought were [not] unlikely to know where would be the proper place to which to direct notices to them; I applied, I recollect, to Nicholas Hobson, cashier of the Planters' Bank, who informed me they lived in Madison County, Alabama, but could not say where their nearest post office was; I also applied to Joseph Estell, who had resided in Madison County and also had a very general acquaintance there; he likewise informed me that they all lived in Madison County, but did not know their nearest post office. I knew of no other source from whence to derive information as to where to direct, and accordingly directed said notices 'Madison County, Alabama,' knowing that, from the general rules of the Post Office Department, they would be sent to Huntsville, the county seat."

" [Signed] ALPHA KINGSLEY"

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" Copy of Note"

"(Copy of the note, referred to in Alpha Kingsley's deposition"

"as marked A)"

" $1,600 0/00. Eight months after date, we promise to pay Matth. Burks, or order, sixteen hundred dollars; payable and negotiable at the Planters' Bank of the State of Tennessee, at Nashville, for value received. Dated in Lincoln county, Tennessee, 20 November, 1837."

" [Signed] JOHN P. BURKS & Co."

" [Endorsed] 'Matth. Burks, Benj'n D. Harris J. Robinson.'"

"(Copy of the notice, made part of Alpha Kingsley's deposition -- B)"

"Nashville, 23 July, 1838"

" Mr. BENJAMIN D. HARRIS: "

" Please to take notice that a note drawn by John P. Burks & Co., payable at the Planters' Bank of Tennessee at Nashville eight months after date to the order of Matt. Burks, by him, you, and J. Robinson endorsed, for the sum of sixteen hundred dollars, dated 20 November, 1837, was this day protested by me for nonpayment, and the holder looks to you for payment as endorser thereof."

" Respectfully, your obedient servant."

"ALPHA KINGSLEY, Notary Public"

"And defendant introduced the deposition of N. Hobson, which is as follows."

"Deposition of N. Hobson"

" Interrogatories to Nicholas Hobson, on the part of the defendant."

" 1. Were you acquainted with the defendant, Benjamin D. Harris in the years 1837 and 1838?"

" 2. Do you know whether said Benjamin D. Harris resided in Tennessee or Alabama, in 1837 and 1838?"

" 3. Have you any recollection of ever telling Alpha Kingsley, notary public, that the said Benjamin D. Harris resided in Madison County, Alabama, in 1838?"

" 4. Were you acquainted with the plaintiff, James Robinson? If so, state where he resided in 1837 and 1838."

" First. I was not acquainted personally with Benjamin D. Harris in 1837 and 1838."

" Second. I do not know whether said Harris resided in Tennessee or Alabama in 1837 and 1838."

" Third. I have no recollection of A. Kingsley's having applied to me in reference to this particular case; he often made application

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to me in regard to the residence of persons living in Alabama; I know that there are a great many of the name of Harris residing in Madison County, Alabama, and from the fact of the drawers of the note living in Madison County, I may have told the notary public what my belief was as to the residence of Mr. Harris, but not from any personal knowledge I had of his residence."

" Fourth. I was acquainted with the plaintiff, James Robinson he resided in Nashville in the years 1837 and 1838."

"[Signed,] N. HOBSON"

"Also, the deposition of Joseph Estell, which is as follows."

"The Deposition of Joseph Estell"

" Question by defendant. Were you acquainted with the defendant in the years 1837 and 1838?"

" Answer. I was, and for some time before."

" Question by same. Do you know whether the defendant resided in Tennessee or Alabama in 1837 and 1838?"

" Ans. I understood that he resided in Alabama in 1837 and 1838. I never saw him in Alabama, and how it was that I understood that he resided in Alabama in these years I cannot now recollect, but such was my belief of his place of residence."

" By same. Have you any recollection of telling Alpha Kingsley, notary public, that the defendant resided in Madison County, Alabama, in 1838?"

" Ans. I have no recollection that I ever told Alpha Kingsley that the defendant resided in Madison County, Alabama, in the year 1838; Mr. Kingsley has often inquired of us -- that is, of my brother, while living, and myself -- as to the residence of persons in Alabama, but my recollection does not serve me as to the name of any of those about whom he made inquiries."

" By same. Were you acquainted with James Robinson? If so, state where he resided in 1837, 1838."

" Ans. I was acquainted with James Robinson; he resided in Nashville, Tennessee, in the years 1837 and 1838."

" [Signed] JOSEPH ESTELL"

"Defendant also introduced Joseph Bradley as a witness, who proved that previous to the maturity of said note, plaintiff had directed to him at Huntsville, Madison County, Alabama, notices to all the parties to the note, requesting him to hand them to the defendant and the other parties, the notices being intended to remind them when the said note would fall due. Witness directed the notices to the post offices of the parties respectively, and to defendant at his post office at Cross Roads, Madison County, Alabama; but the notices of protest of said note were not sent to witness; witness acted as plaintiff's friend in the matter; there was no evidence

Page 45 U. S. 340

to show, that the notary knew who was the holder of the bill, or where he resided."

"The court instructed the jury, that if they believed that the notary made the inquiries stated in his depositions, and sent notice to defendant as therein stated, he being ignorant of his true residence, that the notice was sufficient to charge the defendant, and that, under the circumstances of the case as proved, it was not necessary to make inquiry of the holder of the note as to the residence of the endorser, to which instructions the defendant excepts, and prays the court to sign and seal this bill of exceptions, which is done accordingly."

"WM. CRAWFORD [SEAL]"

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