Denson v. Miller

By the Court. — Lyon, J., delivering the opinion. The first objection urged in the argument was the decision of the Court below refusing to reject the answers of the witness, John B. Miller, to interrogatories sued out in the cause. The objection insisted on was that the interrogatories propounded to the witness were leading. 1. Interrogatories to be objectionable as leading, must suggest the answer to the witness. The questions to which this objection has been made do not suggest the desired, or in fact any, answer, and are not, therefore, leading. 2. The defendant being only a security on the note sued upon, notified the plaintiff to sue the same. The plaintiff objected to the sufficiency of this notice, under the Act for the relief of securities and indorsers, of 26th December, 1831, Cobb’s Digest, 596, and claimed that it was necessary, to make such notice effectual, for the security to notify the holder of the note that he intended to avail himself of the benefit of that Act if suit was not brought, etc. We agree with the Court below that this was not necessary — all the Act requires is, that the security notify the holder to bring suit, or to proceed to collect the same, which is in effect the same. If this be done, and suit is not instituted within three months, the security is discharged from further liability on the note. 3. We can not see any error in the charge objected to. The point of the objection was this: one of the notes was not due until and on 31st May — 2d June. The time when the notice to sue was given was in the spring of 1858. Counsel insisted that this note was not, therefore, due at the time the notice was given, for when it matured the spring was past. [279] In reply to this position the charge was appropriate, for it is very common for persons and witnesses, in speaking oí past transactions occurring in June, to say that they occurred in the spring of the year, and indeed it is not very clear but that they speak accurately, for although the months of March, April and May are generally regarded as the spring of the year, yet there is high authority for saying that the spring continues until the summer solstice, or 21st day of June, and up to that time many, if not the majority of persons, speak of and regard the season as the spring of the year. Besides, the defendant had notified the plaintiff to sue the notes — if one of them was not then due, and in a condition to be sued, the plaintiff ought to have promptly said that the note was not due, and he could not in consequence sue immediately, and he would no doubt have done so if such had been the fact. Under the circumstances we think the Court very properly charged the jury that they “ must look to all the circumstances of the case, in making up their opinion, as to the. time of notice,” thus fairly leaving the whole question to them. The charge requested and refused,^is disposed of in the second point. 4, The only other point in the case is, whether the Court erred in refusing the motion for a new trial, on the ground that the verdict was contrary to law, or the evidence, or without evidence. We think that there was no error in this refusal. The evidence disclosed that the 'defendant was not interested in the consideration of the note, that he was the security, that he gave notice to the plaintiff to sue the notes, and that suit was not brought until long after the three months was passed. He was, therefore, entitled to a verdict discharging him from liability oh the note. The only question about which there was any doubt was, whether the notice was given after the large note was due. That question was properly left to the jury, and we think the weight of the evidence on this point was with the verdict. Let the judgment be affirmed.