Harrison v. Bowen

Garland, J., delivered the opinion of the court. The defendant is sued as the endorser of a promissory note for seven thousand five hundred and twenty-four dollars and fifty-eight cents, drawn at Rodney, in the state of Mississippi, on the 1st January, 1836, by Wilson & Allison, payable to him at the Planters’ Bank, Natchez, and endorsed in blank by him and Charles S. Lee. At the bottom of the note is written, “ The. drawers, Wilson & Allison, will acknowledge notice at Rodney.” [284] First endorser, A. G. Bowen, Rodney. Second endorser, Charles S. Lee, Rodney. Every means of defence has been resorted to, except contesting the justice of the demand. The defendant was interrogated to ascertain if the makers of the note had not signed it. He answers “ that he does not know if they did execute it, and if deponent knew of the execution, he has forgotten it. He was further asked, if he had not endorsed the note. He replies “that he cannot say with certainty ; if he did endorse the same, which be cannot say, he has forgotten it; as if endorsed by him, he has not seen the note since.” This is his answer, on oath, and yet it is admitted, in his answer to the petition, that he did endorse the note. He was then asked, “did you receive notice of the non-payment and protest of the same at Rodney, as stated?” and he answers in a single monosyllable, “No.” These answers are most extraordinary, to say the least of them. That a man residing in the country, a planter, perhaps, should not be able to recollect whether or not a note for more than seven thousand five hundred dollars, payable to himself, was executed by the makers and endorsed by him, is most remarkable, and shows such want or inaccuracy of memory, as induces us to place very little reliance on his brief negation of the non-reception of notice of protest. He has probably seized upon the peculiar phraseology of the interrogatory to justify the answer. In charity to the defendant we shall consider this case as though these answers were not in the record. The ground of defence is a want of notice. We think it is sufficiently proved that the defendant did sign the agreement. to receive notice at Rodney. Two witnesses swear to the signature to the memorandum to that effect; one of them the late parish judge of Concordia, and the others say they are doubtful, or do not know whether it is his signature. The defendant lives On the Louisiana side of the Mississippi, and Rodney is proved to be the nearest post-office to him, and he gets his letters and papers from thence. It is not attempted to be shown that he receives them any where else, or that there is ' a post-office nearer to him. The question then is, was a notice sent to him at Rodney sufficient? The [285] first evidence offered, was a paper purporting to be a protest, made by a person stating himself to be a notary public in Natchez. It was objected to, and rejected.by the court. The plaintiff took a bill of exceptions. We do not consider it necessary to decide upon that now. The plaintiff then offered the deposition of James K. Cook, taken in Mississippi, by William S. Purdue, a justice of the peace in Natchez, to whom the commission was by name directed. The defendant interposed various objections to the admission of this deposition, which being overruled by the court, he excepted. Wherea commission is addressed to a person by name in another state as a special commissionertotake depositions, his capacity and signature and that of the witness who testifies, are not required to be proved. 1st. That the official capacity of Purdue, the commissioner appointed by the court to take the deposition, was not proved. 2nd. There was no proof of his signature or that he had reduced the deposition to writing. 3d. That as a consequence the signature of Cook was not attested. 4th. That the first interrogatory and the answer thereto was illegal and inadmissible, as it attempts to prove the official capacity of Cook by parole. 5th. That the second interrogatory and the answer thereto is inadmissible, because the questions contained in it are “ leading questions.” The three first objections can be disposed of together. William S. Purdue, a justice of the peace, residingin Natchez, was appointed a special commissioner by (he court, and the commission directed to him by name. In such a case it is not necessary to prove his signature or that of the witness who testifies. His certificate is sufficient, as he is quo ad hoc, the officer of the court. It is sufficient, if the answers be reduced to writing, by a disinterested person, and signed by the witness in presence of the commissioner. It is certified in this case, that the witness wrote his own answers and signed them in presence of the justice. The fourth objection, it is not necessary to decide, as the plaintiff does not rely on the protest, which is the official act of the notary, but relies upon his deposition to prove a demand of payment and the giving of notice. The answer to the fifth objection is, we do not consider the second interrogatory a. leading question. It is not indispensably necessary that demand of payment and notice be made and given by a notary. Any other person may make demand and give notice,* the mode of proof only is different. The judge did not err in receiving the deposition. Cook says on the day the note was payable, he went with it to the Planters’ Bank at Natchez, whilst the bank was open, presented it and demanded payment, which was refused. He described the note particularly, and says he protested it the same evening, and prepared a notice in writing addressed to the .defendant at Rodney, Mississippi, informing him the holder looked to him for payment, which notice he placed in the post-office at Natchez, the next morning about nine o’clock in the forenoon, in time to go by the mail of that dajr. It is seldom that we see a witness testifying with so much particularity and accuracy. It is not indispensably necessary that a demand of payment of a note should be made and notice given by a notary public. Any other person may make such demand and give notice, but the mode of proof is different. By our law the certificate of a notary is evidence of demand and notice of protest, but when such demand is made and notice given by a private individual, it must be strictly proved by the person making it, or other competent testimony. The note was admitted in evidence without objection, and, upon a full examination of the evidence, we are satisfied the plaintiff has made out his case and ought to recover, and that the district judge erred in dismissing the suit. The parties agree that the statute of the state of Mississippi, allowing interest on promissory notes, shall be considered as in evidence, which allows eight per cent, per annum on demands of this description. It is, therefore, ordered and adjudged, that the judgment of the District Court be annulled and reversed ; and this court proceeding to give such judgment as ought to have been given in the court below, do further order, adjudge and decree, that the plaintiff, Nathaniel Harrison, recover of and have judgment against the defendant, Allen G. Bowen, for the sum of seven thousand five hundred and twenty-four dollars and fifty-eight cents, with interest at the rate of eight per cent, per annum from the fifth day of January, in the year 1838, until paid, with costs in both courts.