Bank of Columbia v. Mackall

2 F. Cas. 641, 2 Cranch 631, 2 D.C. 631

• Court: U.S. Circuit Court for the District of District of Columbia
• Decided: December 15, 1825
• Status: Published

Opinion

THE COURT

(nem. con.) refused to instruct the jury that the plaintiffs could not recover upon that evidence, and instructed them that if they believed the facts to be as stated, no other or further demand of payment was necessary to be made of the maker of the note; and that they might infer that due notice of the nonpayment was given to the defendant, or that he had waived the objection arising from the want of notice.

Mr. Jones, then prayed the court to instruct the jury, that it is necessary for the plaintiffs, in order to entitle themselves to recover in this action, to prove, in addition to the regular demand of payment of the said note at the said bank on the last day of grace, that the defendant was on that day, or the next, duly notified of the dishonor of the said note, and of the intention of the plaintiffs to hold him liable for the same as indorser; and further, that the delivery of the note to the deputy-notary for notice and protest (if such be found by the jury to be the fact,) was not, under the circumstances stated, notice to the defendant; but that it was still necessary, in order to charge the defendant as such indorser, that he should have received from his said deputy actual notice of the dishonor of the said note, and of his being held liable for the same.

• Whereupon the court instructed the jury that the said delivery of the said note to the deputy of the notary as aforesaid, and under the circumstances aforesaid, was not per se, notice to the defendant of the non-payment of the said note; and the court refused to give the other part of the instruction.

Mr. Jones then prayed the court to instruct the jury, that in order to enable the plaintiffs to recover in this action, to prove such actual notice to the defendant; or that the defendant should, with a distinct knowledge of his right to require ^uch notice, have at the time of the said note being demanded, or before, waived such notice, and discharged the plaintiffs from the duty of giving the same.

Which instruction the court refused to give; being of opinion, that it is competent for the plaintiffs to show that the defendant waived the objection arising from the want of notice, after laches of the plaintiffs had occurred; and that from the evidence aforesaid, the jury, if they should believe the same, may infer such waiver.