Bank of Alexandria v. Swann

2 F. Cas. 615, 4 Cranch 136, 4 D.C. 136

• Court: U.S. Circuit Court for the District of District of Columbia
• Decided: April 15, 1831
• Status: Published

Opinion

CRANCH, Chief Judge,

after stating the substance of the special verdict, delivered the opinion of the court, (THRUSTON, Circuit Judge, absent.) These seem to be all the material facts found by the jury; upon which two questions are made: 1. Had the defendant any notice of the non-payment of the note upon which the suit is brought? 2. If he had, was it due notice?

1. If the same variance had existed in the declaration, it would have been fatal to the plaintiffs’ cause; the note could not have been given in evidence. The variance is substantial; a note for $1,400 is not a note for $1,457. The verdict states circumstances from which a jury might infer that the defendant understood it to be the note for $1,-400 which he had indorsed, but they do not draw the inference; and the court is not permitted to draw any inference of fact from the facts found by the jury. The court cannot say, therefore, that the defendant had any notice of the non-payment of the note mentioned in the declaration.

2. But if • he had any notice, we think it was too late. In Lenox v. Roberts, 2 Wheat. [15 U. S.] 373, it was decided, “that a demand of payment should be made upon the last day of grace, and notice of the default of the maker be put into the post-office early enough to be sent by the mail of the succeeding day. This was not done; and although it is found that it was the usage of the banks in Alexandria “to deliver out to the notary, on each day at 3 o’clock, all bills discounted by or to be paid at such banks, which became due on such day, for demand and protest; and for the notary to return such notes, with the protests for nonpayment, to the said hank, on the morning of the succeeding day, soon after the bank opened,” yet it is not stated, as part of the usage, that the notary should not give notice to the parties until after the return of the notes to the bank. The notice, in the present case, was given by the,notary; and might as well have been given on the 25th as on the 20th. He knew that the note had been dishonored at 3 o’clock on the 25th, and the mail did not close until 9 o’clock in the same evening. According to the decision in Lenox v. Roberts, [supra,] therefore, we think the notice was too late. [Supra.] Upon both grounds, therefore, we are of opinion that the judgment on the special verdict should be for the defendant. Reversed. [Bank of Alexandria v. Swann,] 9 Pet. [34 U. S.] 33.

[NOTE. This decision was reversed in Bank of Alexandria v. Swann, 9 Pet. (34 U. S.) 33, —Mr. Justice Thompson delivering the opinion,—on the ground that notice of dishonor mailed in Alexandria on the day after the note was protested, being the day after the last day of grace, was given in due time. “The law does not require the utmost possible diligence in the holder, in giving notice of the dishonor of the note. All that is required is ordinary, reasonable diligence, and what shall constitute reasonable diligence ought to be regulated with a view to practical convenience and the usual course of business. * * * The law, generally speaking, does not regard the fractions of a day; and, although a demand of payment at a bank was required to be made during banking hours, it would be unreasonable, and against » * * the usage of the bank at that time, to require notice of non-payment to be sent to the indorser on the same day.” Further ground of reversal was that a notice of dishonor, which describes a note as for $1,457, the true amount being $1,400, but the figures “1,457” being set down in the margin of the note, is sufficient, when the description is in other respects correct, and the defendant has indorsed no other note by the same maker, nor has any other such note been discounted by the bank, or placed there for collection or otherwise, since there is no room for any mistake by the indorser as to the identity of the note.]