Journey v. Pierce

7 Del. 176

• Court: Superior Court of Delaware
• Decided: July 5, 1859
• Status: Published

Opinion

By the Court:

We must refuse the motion for a non-suit. The objection on which it is founded, is to the sufficiency of the notice of protest served on the defendant, the endorser of the note, the notice by mistake having been dated on the 14th instead of the 15th of January, 1859, when the note became due, although it is proved and admitted that the demand, protest and notice were made and given on the 15th instead of the 14th of the month. Notwithstanding there appears to be some discrepancy and conflict between the eases cited in the argument by counsel, we understand the better and later authorities to decide, that where the note is misdescribed in the notice, the latter will not be held insufficient, unless the error is of such a nature as to mislead the endorser, which could not have been the case here. A copy of the notice in this case is in evidence and is now before us, and the note in question is very fully and correctly, and even minutely described in it; the only error being in the date of the notice itself, there being none, however; in the actual time of the demand, protest and of preparing and serving the notice on the defendant; all of which was on the right day, on the 15th, and not on the 14th of January, as is incorrectly stated in the date of the notice. As the error in this particular merely, has been clearly rectified by the evidence of the protesting officer who gave it, and there was nothing in it, we think, to mislead, or deceive the defendant in regard to the note referred to in it, we must hold the notice to be sufficient, and refuse the motion for a nonsuit.