Adams County MsArchives Court.....Walker, R.J. 1839
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Source: Reports Of Cases Argued And Determined In The High Court Of Errors And Appeals Of The State Of Mississippi
Written: 1839

Walker, Appellant, v. Tunstall.

pages 259-266

The statute which requires the cause of action to be endorsed on the writ by 
the clerk or plaintiff's attorney, only intended to give the defendant notice 
of the nature of the action. If the plaintiff states more in his endorsement 
than is necessary it will be treated as surplusage.

Where the endorsement on the writ stated correctly the amount of the note, 
time of payment, &c., but described it as payable at one bank when it was in 
fact payable at another: Held, the notice given of the cause of action was a 
sufficient compliance with the statute.

When notice of a protest of a promissory note is to be given to a member of 
congress, it must be sent to his place of residence, and if his residence is 
not known due diligence must be exercised to ascertain the same. Notice sent 
to Washington City, District of Columbia, when the party has a residence in 
the state which he represents, is not sufficient.

If a member of congress had no fixed place of residence, but was known to be 
in Washington City, notice sent there would be sufficient. (Semble.)

APPEAL from the circuit court of Adams county.

This was an action of assumpsit on a promissory note drawn by Benjamin 
Williams for 5350 dollars, endorsed by R. J. Walker, the appellant. The cause 
was tried at the February term of said court, before the Hon. George Coulter.

The defendant pleaded in abatement for a variance between the endorsement of 
the cause of action on the writ, and the description of it in the 
declarations, in this, that the endorsement describes a note payable at the 
Planters’ Bank, and the declaration describes a note payable at the 
Agricultural Bank. There was a demurrer to the plea, which was sustained. 
Defendant pleaded over.

The plaintiff proved on the trial, that the note sued on, was regularly 
presented for payment, and protested for non-payment, when it became due, and 
that notice of protest of non-payment, was sent by mail to the defendant, 
directed to Washington City; witness did not know where Walker’s residence was 
at that time, but that he then was in the Senate of the United Slates, and 
supposed he was in Washington City; no other notice was given.

It was also proved, that Walker was a citizen of Mississippi, that his 
residence had been in Natchez; but that, in September, 1835, he removed to 
Madison county, in this state; and that Madison county was his last place of 
residence, but that he was in Washington City, at the time the note was 
protested.

That he sold his place in Madison county in May, 1836, but retained a part of 
it; witness did not know that that part embraced the residence. Walker’s 
residence, when in Mississippi, was unknown to the witness at the date of the 
protest.

The defendant’s counsel moved the court to instruct the jury, that, to hold an 
endorser responsible, if notice was not given to him in person, it must be 
sent to him, either at his place of residence, or his last known residence; 
and if they believed such notice had not in this case been given, they must 
find for defendant; which the court refused, but charged, that if the jury 
believed that at the time of the protest, Walker had no known place of 
residence, but was known to be in Washington City at the time, such notice was 
legal and bound him, and if it was known that he was not at any of his former 
residences, but at Washington City at the time of the protest, it was not 
necessary to send notice to his former place of residence, but to Washington 
City, if he was notoriously at Washington City at the time, as a senator.

To which the defendant excepted. Appeal to this court.

Gaines and Addison, for the appellant.

1. The court erred in sustaining the demurrer to the plea of abatement.

2. In refusing the instruction asked for by defendant’s counsel. The proof 
given was of an excuse for not giving notice which was inadmissible under the 
averment in this case of actual notice. 2 Smith, 223, cited in Bayley and 
Chitty; 3 Greenleaf, 236; 6 Mass. Rep. 386; 2 Littell, 185; 2 Starkie, 161, 
edition of 1837; in the form of precedents are Chitty’s Pleadings, vol. 3.

In case of the removal or temporary absence of an endorser, notice should be 
sent to his last place of residence. 20 Johns. Rep. 382.

3. The charge given by the court was clearly erroneous. 5 Yerger, 70.

"When it is not known where the endorser lives, due diligence must be used to 
find out, and where such diligence is unsuccessful notice may be dispensed 
with. But merely inquiring at the house where a bill is payable is not 
diligence." Inquiry should be made of other parties. Bayley on Bills, edition 
of 1836, 280, 281; 12 East, 433; 1 Johns. 294; 3 Camp. 262; Chit. on Bills, 
Ed. of 1836, p. 525; 3 Conn. Rep. 101; 13 Johns. 432; 8 Pick. 251; 13 Martin, 
321; 16 Martin, 186; 1 Peters, 578; 2 Peters, 121, 134, 135.

The court charged the jury, that upon these facts stated in the bill of 
exceptions, the defendant might be chargeable as endorser. The court will 
observe that the note does not appear to have been presented by a notary, or 
by any agent of the holder, nor is it stated that the notice to Washington 
City was sent in due time. Chit. on Bills, 411, 412, 413, 586.

"Notice sent to the place of residence of a member of congress is good, 
although he was, at the time the notice was sent, at Washington City, 
attending to the discharge of his official duties." 9 Yerger, 1.

It follows from this position, that a notice sent to a member of congress at 
Washington, while there in discharge of his official duties, instead of being 
sent to his place of residence, or his last known place of residence, would 
not be good. In this case it is proved that Mr. Walker’s last lnown place of 
residence was Madison county, although it is not shown that the holder or his 
agent used any diligence to ascertain it, or that he even made any inquiry on 
the subject, which, according to the authorities referred to, is indispensable.

Montgomery and Boyd, for the appellee.

The court did right in sustaining the demurrer to the plea in abatement,

1. Because the endorsement on the writ, is not technically a part of this, but 
a mere notice to the defendant of this cause of action, and if defective was 
only ground for a continuance. Rev. Code, 107, sect. 22.

2. Because tbe plea was not technically pleaded. It commenced and concluded 
with a prayer of judgment.

When the matter in abatement is on the writ, the plea should commence as well 
as conclude with a prayer of judgment; but if the matter is dehors the writ, 
it should only conclude with a prayer of judgment. 1 Chit. Plead. 400.

The notice of protest and non-payment was sufficient to render the defendant 
liable as endorser, 1 Johns. Rep. 194; because his place of residence was not 
known at the time, and the presumption is, that, as he was permanently in 
Washington, he was in the habit of receiving his letters at the post office in 
that city. 4 Wend. 398, 328; 16 Johns. Rep. 218.

When an endorser has no place of residence, or his residence, on diligent 
inquiry, cannot be ascertained, the law excuses notice, and the endorser is 
liable without it, or in case it be sent to the wrong place. All the law 
requires, is due diligence on the part of the holder to give notice. Bailey on 
Bills, 280, note 121.

As to the plea in abatement, it was not necessary to describe the note sued 
on, but was sufficient to state that the action was on a note, and what sum 
was demanded. The endorsement on the writ was sufficient, unless it was so 
erroneous as to mislead defendant. Such a description of a note would be 
sufficient in a notice to charge an endorser. Bailey on Bills, 253—4; 12 Mass. 
Rep. 6; 2 Johns. Cases, 337.

Mr. Chief Justice SHARKEY delivered the opinion of the court.

Where are two grounds relied on by the plaintiff in error to reverse the 
judgment of the court below. First, that the endorsement on the writ was a 
variance from the declaration, and that, for that reason, the demurrer to the 
plea in abatement should have been overruled; and secondly, that the notice to 
the plaintiff in error, was not sufficient to charge him as endorser of the 
note.

First. The note is correctly described on the back of the writ in all things, 
except as to the place of payment. It was described as payable at the 
Planters’ Bank, when, in truth, it was payable at the Agricultural Bank, and 
so described in the declaration. The statute provides that it shall be the 
duty of the clerk or plaintiff’s attorney to endorse on all writs to compel 
appearance, the nature of the action, whether founded on bond, bill, note or 
other written contract, covenant or agreement, or on open account, and the 
amount of the sum actually demanded, or whether the same be brought to recover 
damages for wrongs and injuries done to the property or person of the 
plaintiff; and also whether bail be or be not required. Rev. Code, 107. This 
can only be regarded as a notice to the defendant of the nature of the action. 
It in reality constitutes no part of the writ. If the plaintiff states in it 
more than he was bound to do, it can only be surplusage, and may be rejected; 
at most it can afford no ground for a plea in abatement. In this instance, the 
plaintiff’s attorney did all that the statute requires. The nature of the 
action is given, and said to be founded on a note, the amount thereof being 
stated. This is all that the statute requires, and the endorsement might here 
have stopped; it cannot be vitiated by the addition of time and place of 
payment. No good reason can be perceived why such variance should be fatal. It 
is an immaterial variance, and considering the endorsement as a notice, it 
could only, at most, have entitled the defendant to a continuance. The 
demurrer to the plea in abatement was, therefore, properly sustained.

Secondly. Was the notice sufficient to charge the plaintiff in error as 
endorser? This question necessarily arises out of the instructions asked of 
the court, as applicable to the case as it was presented on the trial. 
Although the general principles of law, in relation to the liability of 
endorsers, are but few, and seem to be well settled; yet so varied are the 
cases in which it becomes necessary to make an application of the law, that it 
is often difficult to determine whether the endorser is liable or not. The 
liability is to be tested by the steps which have been taken by the holder of 
the note.

The great object of the law is that the endorser, whose undertaking is 
conditional, should be informed of the dishonor of the note, so that he may 
withdraw his funds, or take immediate measures to protect himself against 
loss. To this end the holder must give immediate notice of the dishonor. The 
most certain means of accomplishing this object must be adopted. When personal 
notice can be given, that is most certain of all other modes, and should be 
adopted. When that cannot be done, however, notice may be left at the 
residence of the endorser, and this is equivalent to personal notice, because 
the law presumes that it is sure to be received. Where such notice cannot be 
given in consequence of the distant residence of the party, it will be 
sufficient to give notice through the mail, directed to the nearest post 
office to the endorser’s residence, or to such office as he may be in the 
habit of getting his letters from. If he has changed his residence, and after 
due diligence his place of abode cannot be ascertained, it will still be 
sufficient to leave it at his last known place of residence. If he is 
temporarily absent, but has still a place of residence, it will be sufficient 
to leave notice there, as is most likely to reach him. If he cannot be served 
personally with notice, and has no place of residence, or it cannot be 
ascertained after diligent inquiry, the failure to notify may be excused, by 
so averring in the declaration. These are all but means to accomplish the same 
end, and in every step the law imposes on the holder, reasonable diligence in 
bringing home notice to the endorser, so that he may be on his guard. Does the 
case before us come within any of these rules? The notice was directed to 
Washington City, and put in the post office; the plaintiff in error being a 
member of the senate, from Mississippi. Under what circumstances would such a 
notice be deemed sufficient? If he had no known place of residence in 
Mississippi, or if, alter diligent inquiry, his place of residence could not 
be ascertained, then the notice might be good. In order to ascertain this, we 
must resort to the testimony, which is set out in the bill of exceptions.

It was in proof that when the note became due, it was regularly protested for 
non—payment. That notice of protest was sent, in due course of mail, to the 
plaintiff in error, directed to Washington City, District of Columbia. The 
witness did not know where the plaintiff’s residence was, but that he was at 
that time a member of the United States senate, and he supposed he was at 
Washington City, and that this was the only notice given. It was further 
proved that Walker was a citizen of the state of Mississippi, and that he had 
changed his residcnce in September, 1835, from Natchez to Madison county, in 
the same state. That Madison county was his last known place of residence, and 
that he was in Washington City at the time the note was protested and notice 
sent. That he had sold his place in Madison county in May, 1836, but in the 
sale had retained a part of it, and the witness did not know whether the 
dwelling house was on the part retained or not. The residence of Walker was 
neither known to the witness, nor shown at the time of the protest of the note.

This testimony, although not positive, is sufficient to raise a fair 
presumption that Walker was, at the time of the protest, still a citizen of 
Madison county. It is certain that he had resided there nine months previous, 
and it is not certain that he had changed his residence. He had only sold part 
of his plantation, and whether the part sold included his dwelling or not, the 
witness did not know. Under such circumstances, and with a knowledge of these 
facts, what was the duty of the holder of the note? The books speak one 
universal language, to wit: that reasonable diligence must be used in order to 
ascertain the residence of the endorser; and if, after such diligence, it 
cannot be found, the holder will be deemed to have done his duty. Has the 
holder, in this instance, brought himself within the rule? The witness stated 
that, at the time of protest, he did not know where Walker’s residence was, 
but at the time he was a member of the senate, and he supposed he was at 
Washington City. Did he inquire where his residence was? No such thing is 
stated. No effort whatever was made to ascertain whether Walker still lived in 
Madison county, although it was known that his last residence was there, and 
it was not known that he had changed it. It is probable that the necessary 
information might have been obtained without much difficulty, but no trouble 
was taken to acquire it. It is not certain whether this testimony was given by 
the notary or not; the bill of exceptions does not show. It is probable that 
it was, and although he did not know where Walker’s residence was, it does not 
follow that others were equally uninformed. Not a single inquiry was made, 
however, in regard to it. This was culpable neglect; and to give sanction to 
it, would be to dispense with all diligence. It was incumbent on the holder to 
have made inquiry, whether Walker still resided in Mississippi, and if he did, 
notice should have been directed to his place of residence. That he was at 
Washington City at the time made no difference. His absence was but temporary, 
and the duration of that absence uncertain. In case of such absence from home, 
the law presumes that some member of the family is still at the residence, and 
that communications will be forwarded to the proper address. That in this way, 
an endorser is most likely to be informed of the dishonor of the note. If 
Walker had no residence in Mississippi, that fact probably might be sufficient 
to sustain the notice, but without such showing it must be deemed 
insufficient. Under such circumstances, notice addresscd to his last place of 
residence might also be deemed sufficient. On these points, however, it is 
unnecessary to decide. The court erred, therefore, in charging the jury that 
notice sent to Washington, if it was known that Mr. Walker was there, was 
sufficient, without also charging that reasonable diligence should have been 
used to ascertain his residence. Reasonable diligence is indispensably 
necessary to charge an endorser. 3 Campbell, 262; 12 East, 433; 20 Johns. Rep. 
372; 5 Yerger, 67; 9 Yerger, 1.

The judgment must be reversed, and cause remanded, and venire de novo awarded.


Source: Reports of Cases Argued and Determined in the High Court of Errors and 
Appeals of the State of Mississippi, by Volney E. Howard, Reporter to the 
State; Vol. III; Containing the Cases for December Term, 1838, and January 
Term, 1839. NEW ORLEANS: E. JOHNS & CO., STATIONERS’ HALL, 1839.

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