Harris v. Allnutt

Garleton, J., delivered the opinion of the court. The appellees move to dismiss the appeal on the ground that copies of the petition and citation of appeal have come up with the record, instead of the originals. This motion cannot prevail. This court have heretofore determined that such copies were sufficient, and that it was not .necessary to send up the originals themselves. 4 Martin, N. S., 345 and 360. The action is brought against the endorsers of a promissory note, who, it is alleged, were duly notified of the dishonor of the obligation by the drawer. The defendants for answer, deny generally, but admit their signatures. There was judgment for the plaintiff, and the defendants appealed. The notary public who protested .the note, certifies at the foot of the protest, that “all notices were served this 5lh day of February, 1836, at 9 o’clock, A. M., according to their several directions as above specified,” without stating the manner in which the notices were given, that the court might judge of their sufficiency. As.there is no evidence before us of- the laws of Mississippi, where the note was made and protested, we are compelled to have recourse to our own statute, which provides in such cases that the notary shall mention in his records, “ the notices which he shall have given of his protests to the drawers and endorsers thereof, together with the names of the said drawers or endorsers, the date of the said'notices, and the manner in which they were served, or forwarded to the said drawers and endorsers ; which declaration, duly recorded, under the signature of the said notary public, and two witnesses, shall be considered and received in all the courts ,of this state as legal proof of said notices.” There exists, then, no proof of sufficient and legal notice having been given to the endorsers. Bu.t the counsel for the plaintiff,- aware of the want of such proof, insists that the endorsers have assumed the payment of the note, and relies •on the testimony of Mr. Martin, plaintiff’s attorney, who states that “he made demand upon Briscoe personally-, forthe [468] payment of the note sued on, told him he was instructed to sue him, if it was not paid, or some arrangements made. Says Briscoe told witness he would go to Allnutt, the other defendant, and arrange it. They went to Allnutt together; Allnutt said he would give other notes for the amount. Bris-coe said he would see that Allnutt gave the notes. That Allnutt never gave him the notes in lieu of the notes sued on.” Where eirdor--sers are discharged from liability for want of legal notice of the dishonor of the note, but assume the payment, and propose to arrange and take ud the note, it •will notbe binding on them, ■when the other party fails to show they were .not ignorant of their rights and of their discharge for want of notice. Admitting that the defendants assumed the payment of the note, which is by no means clear, it does not, however, appear that they did so with a full knowledge that they were discharged from liability by want of notice. Being once exonerated, it cannot be supposed that they would readily renew their obligation ; at any rate, it must be shown that they were not ignorant of their rights, or they would not be bound. & Kent's Commentaries, 113; Chitty on Bills, 308; Martin's Reports, 148. This view of the subject renders it unnecessary to notice any other point raised in the cause. We think that the plaintiff has failed to make out his case, and that there is error in the judgment of the court below. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be avoided and reversed, and ■that there be judgment against the plaintiff as of non-suit, he paying costs in both courts.