Wetherall v. Garrett

Robinson, J., delivered the opinion of this- Court. That the holder may prove demand and notice, by presumptive evidence, we consider well settled by a long and unbroken series of English decisions, and fully sustained by the best considered of American cases. To require direct proof in every cause, would be to apply a harsh and rigorous rule, in regard to commercial paper, unknown in the proof ⁴⁶³ of other contracts, and subversive of tire plainest principles of justice. Whilst notice of demand and non-payment, is necessary to fix the liability of the endorser, the proof of that notice, must be governed by the same rules of law, which obtain in the trial of all other causes.

The holder may prove it by the notary, or by the notarial certificate, or by the acts and declarations of the endorser, or, if necessary, he may invoke the aid of all combined. In this case, the notary was dead, the notarial certificate defective, the notices mailed to the defendant not produced, although notice to bring them into Court was duly served. The plaintiffs were obliged, ex rei natura, to rely upon other evidence to prove due notice of the dishonor of the notes, or they must fail in their action. In such a case, it was eminently proper to instruct the jury, that in finding notice of demand and non-payment, they were not confined to the notarial certificate, or to direct evidence thereof.

The letters of the 29th of March, 1852, and July 6th, 1854, written after the maturity of the notes, in which, the defendant voluntarily declared his defence to be fraud, and not want of notice; — his conferences with the plaintiffs in reference to the payment of the notes; — his complaint that it was a heavy claim to pay, and that ho wanted an abatement; - — his promise to send his counsel, Mr. Scott, to arrange the matter; — the interviews with Mr. Scott, and offer by him to pay seventy-five per cent, of the claim; — the examination of the notes with the notarial certificates annexed by the defendant, and not one word of complaint about want of notice, nor one word in denial of his liability at that time, or in any of his interviews with the witness Garrett, who was demanding payment, were facts to go to the jury, which, if believed, authorized them to find due notice of the dishonor of the notes. We do not say that the evidence was conclusive, but that it was legally sufficient, to be submitted to the finding of the jury. ISTor is it an answer, to say that the defendant was a “ layman,” and might not have known that the