Farmers & Mechanics Bank v. Allen

Bartol, J., delivered the opinion of this court This is a suit to recover from the appellee, as endorser of a promissory note. To fix his liability, demand on the draper, and non-payment, and notice to the defendant, of those facts, were necessary to be proved. The plaintiff, to support the action, after offering the note, the handwriting of the drawer and endorser being admitted, proceeded to offer in evidence the protest of the notary, containing, after setting out a demand, and non-payment, the statement, that “on the same day he (the notary) made out written notices of protest, for,” &c., “and put them in the post office,” &c. On motion of the defendant the court refused to admit the evidence, and the plaintiff’s exception to that ruling constitutes the only exception in the case. [479] (Decided June 28th, 1862.) The demand of payment made by the notary, as stated in-the protest, was wholly insufficient; it was not made on the drawer, but at the bank at Westminster, although it is not pretended the note was payable at that place. It was conceded at the bar, by the appellant’s counsel, that the protest was not admissible evidence c?f a demand on the drawer, and nonpayment by him,-to bind the defendant, but he argued that it ought to have been received as evidence of notice. But the answer to this view, as presented in the appellee’s argument, and a reference to the authorities there cited, (particularly the cases of Graham vs. Sangston, and Nailor vs Bowie,) is conclusive of the case. The only evidence of a notice to the endorser furnished by the notary’s certificate, was notice that an insufficient demand had been made by him. Tf. ' . íí' h'. i.í í , could not bind the defendant, and the evidence v p-(. "iy excluded. If the plaintiff had. accompanied his oí i- T proposal lo ÍQllovst-’wtíti other evidence Vo'proveces¿5^the- - Efficient demand was made on the defendant, or V i , í Í,,-1 been agreed, by the parties, that the demand shou be inn that the bank, the question before us might be decided differently. But no such offer was made, and We cannot-speculate on the subject: ihe admissibility of the evidence is to be determined per se, and so considered, it was inadmissible Judgment affirmed.