President of the Farmers Bank v. Bowie

Le Grand, C. J., delivered the opinion of this court. This is an action of assumpsit, instituted by the appellants,. [294] as holders of a promissory note, drawn by Robert Wright and endorsed by the appellee and others. The plaintiff, after having proved the making of the note and the endorsement thereof by the appellee, further proved by Richard I. Cowman, notary public, that on the day on which the same became due he presented it at the Farmers Bank, at Ann'apolis, (where the same was made payable,) and demanded payment, and on payment being refused— according to the statement of the record — uhe directed the following notice of protest, (no notice of protest filed,) of this note to the defendant at Bladensburg where the said note was dated” The plaintiff also gave in evidence the protest of the note, wherein the notary says he “addressed a written notice to each of the endorsers of the said note therein inform-■ ing each of them that he was held liable for the payment of the said note, and directed them respectively at Bladensburg,” fyc.- This constitutes all the testimony, in the record, of notice' to the appellee as endorser. At the trial below the plaintiff asked the court to instruct the jury, if they believed all the facts proven, the plaintiff was entitled to recover. This direction the court refused to give, but instructed the jury to the effect, that although they should believe all the facts proven, the plaintiff was not entitled to recover, there being no sufficient evidence of notice of demand and non-payment. We think the court acted rightfully in rejecting, the prayer and in granting the instruction which it did. So far as the notice is concerned which is set out in the protest, it is identically the same as that in Graham vs. Sangston, 1 Md. Rep., 59, and the decision in that case is conclusive on the one we are now considering so far as this question is involved. The defect of the notice there, as here, consists in the omission to inform the endorser the note was due and unpaid.- The other evidence of notice is, that the notary “directed the following notice of protest,” without slating of what the notice consisted. Moreover, it does not appear from this part of the testimony, nor, indeed, from any other part, except [295] that contained in the protest, when any notice was placed in the post office. The notary merely proves he directed a notice, a copy of which is not given. This evidence is wholly insufficient to fix the liability of the endorser, because it does not appear ever to have been sent to the party through the post office, or otherwise. This case is wholly unlike that of Barry, et al., vs. Crowley, 4 Gill, 194. There the holder relied on the prima facie evidence given to the protest of the notary by the act of 1837, ch. 253, and the protest stated, “on the same day, I, (the notary,) deposited in the post office, Washington city, notice of protest to P. Crowley,” &c. In the case now before us, the notice which was sent was insufficient, and it does not appear any other was sent, although the notary swears he “directed” notice of protest to the endorser. Now were it conceded, on the authority of the case in 4 Gill, that the law would intend, prima facie, “notice of protest” to include everything necessary to fix the,liability of the endorser, nevertheless it would be incumbent on the holder to show such notice was deposited in the post office, or delivered, within the time limited by law, to the party to be charged, and there is a total failure of proof to show it has been done. These being our views, the judgment of the circuit court must be affirmed. But inasmuch as this court, under a procedendo, remanded the case of Graham vs. Sangston, to enable the plaintiff to supply the required proof, it is asked, although the judgment be affirmed, that a procedendo be awarded in this case. This case is not like that of Graham vs. Sangston; there the judgment was reversed on the appeal of the plaintiff, whilst here it is affirmed on his appeal. The only act under which the writ could be asked is that of 1830, ch. 186. It authorises the issue of a procedendo in cases of appeals by plaintiffs upon bills of exception, when the judgment excepted to shall be affirmed, if it shall appear to the Court of Appeals that the substantial merits of the case are not determined by the judgment. But this power is not unlimited. It cannot [296] be exercised “where the judgment of the Court of Appeals would be a bar to a new action brought upon the same cause." We regard this ease as falling directly within the language and meaning of the proviso. The only action which could be brought on the note is that of assumpsit, and to such an action the judgment would be a flat bar; the pleadings would show the cause of action to be the same in both cases. This was not so in Parker vs. Sedwick, 4 Gill, 318, as is made manifest by the argument of the counsel for the plaintiff in that case. It was to such cases, and to actions of ejectment and petitions for freedom, that the act of 1830, ch. 186, was intended to apply. Beall and others, vs. Beall and others, 7 Gill, 233. Judgment affirmed and procedendo refused,