THIS case was brought up by writ of error from the Circuit Court of the United States for the Southern District of Mississippi. It was a suit by the indorsee of a promissory note against the indorser. Bowling, the indorsee, lived in Maryland, and Harrison, the indorser, in Mississippi. The note was as follows:–– $5,800.
The opinion of the court was delivered by: At the foot of said note, and on the face thereof, was the following memorandum:–'Third indorser, J. P. Harrison, lives at Vicksburg.'
Vicksburg, November, 26, 1836.
Two years after date, I promise to pay to the order of W. M. Pinckard five thousand eight hundred dollars, for value received, negotiable and payable at the office Planters' Bank, Vicksburg.
Indorsed:–'Pay Pinckard and Payne, or order. W. M. Pinckard.' 'Pay J. P. Harrison, or order. Pinckard and Payne.' 'Pay John D. Bowling, or order. J. P. Harrison.'
At May term, 1840, suit was commenced by Bowling against Harrison, and the cause came on on for trial at May term, 1842. The jury, under the instructions of the court, found a verdict for the defendant, when the following bill of exceptions was taken by the counsel for the plaintiff.
The plaintiff proved, by Alexander H. Arthur, a witness, who was sworn, that said memorandum was in the hand writing of the defendant, J. P. Harrison, and thereupon said memorandum was read to the jury. The plaintiff then proved, by said Arthur, that said note was deposited in the office of the Planters' Bank at Vicksburg, Mississippi, on the 29th day of November, 1838, for collection, and that on that day, the 29th day of November, 1838, he demanded payment thereof of the teller of said bank, who refused to pay the same; that on the same day he deposited in the post-office at Vicksburg a written notice of the non-payment of said note, directed to said defendant, Jilson P. Harrison, informing him of the non-payment of said note. The said witness further stated, that he acted as the agent of the Planters' Bank in making demand of payment, and giving notice of non-payment of said note. Said witness further stated, that Jilson P. Harrison, the defendant, lived in the town of Vicksburg, in which is and was the office of the Planters' Bank, when the note sued on was payable at the date of the maturity of said note. That for several years prior to the maturity of said note, it had been the usage of the Planters' Bank of Vicksburg to have notice served personally upon the indorsers resident in Vicksburg, unless there was a memorandum on the note appointing some place at which notice would be received; and if there was a memorandum on the note designating a place where notice was to be served, then the notice was left at such place. That this usage applied to notes discounted or deposited in bank for collection. That the language of these agreements was generally as follows:–'Indorser will receive notice at Vicksburg post-office,' &c., though sometimes they were in the language of the one attached to the note sued on; that seeing the defendant's name written at the foot of this note sued on, he supposed it to be an undertaking on his part to receive notice through the Vicksburg post-office according to the usage of the bank, and accordingly gave him notice of the non-payment of the note, by depositing the same in the Vicksburg post-office, addressed to him at Vicksburg, and that he gave no other notice of the nonpayment of the note to defendant. This being all the evidence in the cause, the court instructed the jury, that to charge an indorser, if he lived in the town in which the note was made payable, the notice must be personal, unless he had agreed to receive it elsewhere, or unless, by the custom and usage of the bank at which the note is made payable, notice of non-payment was left at the post-office. That the memorandum attached to the note sued on was not a sufficient agreement to receive notice at the post-office, and dispense with personal service on the indorser. The court further instructed the jury, that the custom and usage of the bank, as proved in this case by the witness, Arthur, was not sufficient to dispense with personal notice. To which opinion of the court, the plaintiff, by his attorney, excepted before the jury retired from the box, and presented this his bill of exceptions, and prays that the same be signed, sealed, enrolled, and made a part of the record in this cause, which is done accordingly.
Upon this exception the case came up to this court.
It was argued by Mr. Jones, for the plaintiff in error, and by Mr. Crittenden and Mr. Fendall, for the defendant.
Mr. Jones, for the plaintiff in error.
The single objection, and the only question raised in the court below, turned on the point of diligence in the matter of serving the notice on defendant.
Upon this evidence, the court below delivered the following instructions to the jury:––
1. 'That to charge an indorser, if he lived in the town where the note was payable, the notice must be personal, unless he had agreed to receive it elsewhere; or unless, by the custom and usage of the bank where the note was payable, notice was left at the post-office.'
2. 'That the memorandum attached to the note in this case was not a sufficient agreement to receive notice at the post-office, and to dispense with personal service on the indorser; and that the custom and usage of the bank, as proved in ...