Whitney v. Huntt

29 F. Cas. 1089, 5 D.C. 120, 5 Cranch 120

• Court: U.S. Circuit Court for the District of District of Columbia
• Decided: March 15, 1837
• Status: Published

Opinion

The Court

(Morseul, J., contra;,) permitted the deposition to be read. It went to prove the entries made in the notarial book of a deceased notary-public, in New Orleans, as to the demand of payment of the notes, and the notice given to the indorser, the defendant. By those entries it appeared that payment of the first note wah demanded of the maker in person, and notice given in person to the defendant.

That the notice as to the second note, was by letter addressed to the defendant, “ at Camp’s Post-Oifice, near Iberville, Louisiana.” And as to the third note, by letter addressed to the defendant, “ in the Parish of Iberville; in Louisiana.” Parol evidence was also offered that the defendant said that in regard to two of the notes, the plaintiff would be unable to prove notice to him; that he did not live in or near Iberville when the same fell due. He also mentioned Baton Rouge as a place in or near which he resided at the time. Evidence was also given- that Iberville is a large parish in Louisiana, on both sides of the Mississippi ; that on the east side it extends up to within about ten miles of Baton Rouge, and on the other side, opposite or nearly opposite Baton Rouge, and many miles below. That the defendant was an officer in the army, and was on public service during the time he resided up the Mississippi; and that the arsenal and military post of the United States was at or immediately in the vicinity of Baton Rouge, on the side of the river opposite to the town of Iberville, and several miles therefrom.

Whereupon the defendant’s counsel prayed the Court to instruct the jury, that from the evidence aforesaid they could not infer that due notice was given to the defendant of the demand and refusal of the maker of said notes, to charge the indorser.

But the CouRT refused to give the instruction as prayed, and instructed them that if they should be satisfied, by the evidence, that the defendant resided at or near Iberville, in Louisiana, at the time of the protest of the said note, payable two years after date, and that Camp’s Post-Office, mentioned in the certificate of the deceased notary, as stated in the deposition of Felix Percy, was the post-office at Iberville, and that it was the nearest post-office to the residence of the defendant at that time, it was sufficient notice to the defendant, and that the holder had used due diligence in that respect. To which refusal and instruction the defendant excepted, as well as to the admission of the deposition of Felix Percy.

The j ury found a verdict for the plaintiff, for the amount of the two first notes.

No writ of error was issued, and the judgment was satisfied.