Nicholls v. Webb
ERROR to the District Court of Louisiana. This was a suit brought by petition, according to the course of proceedings in Louisiana, [a] by Webb, the defendant in error, against Nicholls, the plaintiff in error, upon a promissory note, dated the 15th of January, 1819, made by one Fletcher, for the sum of 4880 dollars, payable to the order of Nicholls, at the Nashville Bank, and endorsed by Nicholls, by his agent, to Webb. The answer of the defendant below denied such a demand, and notice of non-payment, as were necessary to render him liable as endorser. At the trial it appeared in evidence, that the note became due on the 18th of July, which was Sunday. The demand of payment of the maker was made, and notice of non-payment to the endorser, was given at the request of the plaintiff below, by one Washington Perkins, a notary public, who died before the trial. The original protest was annexed to the plaintiff's petition, and was drawn up according to the usual formula of that instrument, stating a demand and refusal of payment at the Nashville Bank, on Saturday, the 17th of July, the 18th being Sunday, and that he, the notary, 'duly notified the endorsers of the non-payment.' The plaintiff offered this protest, among other evidence, to support his cause, together with the deposition of Sophia Perkins, the daughter of the notary. This witness stated, in her deposition, that her father kept a regular record of his notarial acts, and uniformly entered, in a book kept by himself, or caused the deponent to enter, exact copies of the notes, bills, &c. which he protested; and in the margin opposite to the copy of the protest, made memorandums after notification to endorsers, if any, of the fact of such notification, and the manner; and that his notarial records had been, ever since his death, in the house where she lived. And to her deposition she annexed, and verified as true, a copy of the protest in this case. The copy of the protest stated the demand (as supposed by mistake) to have been made on the 19th, instead of the 17th of July, 1819, and contained the following memorandum on the margin. 'Endorser duly notified in writing 19th of July, 1819, the last day of grace being Sunday, the 18th. Washington Perkins.' In other respects the protest was in the same form with that annexed as the original to the plaintiff's petition. The defendant below objected to the admission of this protest and deposition in evidence, but his objection was overruled by the Court. Whereupon the defendant excepted, and the jury returned a verdict for the plaintiff; upon which, the Court, according to the usual practice in Louisiana, ascertained the sum due, and rendered judgment. The cause was then brought by writ of error to this Court.
This cause was argued by Mr. Eaton, and Mr. C. J. Ingersoll, [b] for the plaintiff in error, and by Mr. Sergeant, [c] for the defendant in error. But as the grounds of argument and the authorities are so fully stated in the opinion of the Court, it has not been thought necessary to report their arguments.
Mr. Justice STORY delivered the opinion of the Court.
^a Vide ante Vol. III. p. 202. Note a.
^b They cited Hingham v. Ridgway, 10 East's Rep. 109. 1 Salk. 205. 2 Strange, 1129. 7 East's Rep. 279. 3 Burr. 1065. 1072. Chitty on Bills, 240. 273. 2 Camp. Rep. 177. 2 Caines' Rep. 343. 12 Mass. Rep. 89. 2 Johns. Rep. 423. 2 Wash. Rep. 281.
^c He cited Pritt v. Fairclough, 3 Camp. Rep. 305. Price v. Torrington, Salk. 285. S.C.. 2 Lord Raym. 873. Pitman v. Maddox, Salk. 690. Hagedorn v. Reid, 3 Camp. Rep. 379. Welsh v. Barrett, 15 Mass. Rep. 381.