Simms v. Larkin

19 Wis. 390

• Court: Wisconsin Supreme Court
• Decided: January 15, 1865
• Status: Published

Opinion

By the Court,

Cole, J.

The notice was sufficient to charge the indorser. It is objected that it was left at the place of business instead of the residence of the indorser, and therefore was not sufficient. It is one of the most familiar rules of commercial paper, that notice of protest might be served at the place of business of the indorser; and we have no idea the legislature intended to change this rule by the enactment of chapter 79, Laws of 1861. The law was passed before the decision in Westfall v. Farwell, 13 Wis., 504, was made, and in view of the ruling at some of the circuits that the statute requiring the notary to “ personally serve ” the notice upon the indorser when within two miles of his residence, meant an actual delivery of the notice to the indorser himself, and that it could not be served by leaving it at tbe residence of tbe indorser. Tbe law was unnecessary, and met tbe fate of most of our session laws by being repealed at tbe next session of tbe legislature. Chap. 251, Laws of 1862.

The record shows that tbe defendants called as a witness George 0. Dousman, a party to the suit. Tbe county court was most unquestionably right in excluding him on the ground that no notice of bis intended examination bad been given, and tbe plaintiff was absent from the state. It is said that be was a competent witness for bis co-defendant to prove a defense personal to tbe indorser. But tbe difficulty is that tbe record does not show that be was called for any such purpose, but was called for the defendants generally.

The judgment of the county court is affirmed.