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After demand of the maker of a note, on the third day of grace, notice
to the endorser on the same day, is sufficient by the general law
merchant. Evidence of a letter, containing notice, having been put into the post
office, directed to the endorser, at his place of residence, is suslicient proof of the notice to be left to the jury, and it is unnecessary to give notice to the defendant to produce the letter before such evidence can be admitted.
ERROR to the Circuit Court for the District of Columbia.
Assumpsit against the defendant, (Beall,) as endorser of a promissory note, drawn by one Tunis Craven, dated at Baltimore, October 22d, 1811, in favour of the defendant, and by him endorsed to the plaintiffs, for 191 dollars 17 cents, negotiable at the bank of Washington, payable six months after date. At the trial the note was given in evidence, and the handwriting of the drawer and endorser admitted. The plaintiffs farther proved, by a notary, that the note was, by him, demanded of the drawer, on Saturday the 25th of April, 1812, being the day on which it became payable, that is, the last day of grace. And not being paid, notice of the non-payment thereof was enclosed in a letter addressed to the defendant, at the city of Washington, and put into the post-office at Georgetown. The notary testified, that he had no recollection of these facts,
and only knew them from his notarial book, and the protest made out at the time; by which it appeared, that a demand was then made of the drawer, and the protest made, and notice sent; and from its being his invariable practice to give notice either personally, or by letter, to the endorsers on the same day. Nor did he then recollect that he addressed the letter to the defendant in Washington, but he presumed from his book, and protest, and his uniform practice, that if he did not know where the defendant lived, (which was probably the case when he received the pote,) he inquired, and ascertained his residence, and addressed it properly. Upon which evidence the defendant's counsel prayed the Court to instruct the jury, that the above proof of notice was insufficient to charge the defendant as endorser of said note, and that the plaintiffs were not entitled to re
Which opinion the Court gave. The plaintiffs' counsel excepted to the opinion. A verdict and judgment thereon was rendered for the defendant by the Court below, and the cause was brought by writ of error to this Court.
Mr. Key, for the plaintiff, was stopped by the February 7th. Court.
Mr. Jones and Mr. Law, for the defendant, contended, that the notice was insufficient: (1.) because it was on the third day of grace; and, (2.) that there was no sufficient proof of notice having been sent by mail, or of the contents of the letter sent; and that before secondary evidence would be
let in to prove the contents, notice should have been Mechauics given to the defendant to produce it.
Bank of Alexandria
The Court were unanimously of opinion, that after demand of the maker on the third day of grace, notice to the endorser on the same day was sufficient, by the general law merchant; and that evidence of the letter containing notice having been put into the post-office, directed to the defendant, at his place of residence, was sufficient proof of the notice to be left to the jury, and that it was unnecessary to give notice to the defendant to produce the letter before such evidence could be admitted.
(LOCAL LAW. PRACTICE.)
THE MECHANICS' BANK OF ALEXANDRIA
The Circuit Court for the District of Columbia has authority to ad
journ to a distant day, and the adjourned session is considered as the
same term. Where the regular term began on the 3d Monday in April, and the
Court continued to sit, de die in diem, until the 16th of May, when it adjourned to the 4th Monday of June; held, that a defendant, against whom an office judginent had been entered on the 16th of May, had a right, under the laws and practice of Virginia, to appear at the adjourned session, and have the default set aside, on giving special bail, and pleading issuably.
This cause was argued by Mr. Lee and Mr. Swann, for the plaintiff in error, and by Mr. Taylor, for the defendant in error.
Bank of Alexandria
Mr. Chief Justice Marshall delivered the opinion
Withers. of the Court.
February 9th. This is a writ of error to a judgment rendered by the Circuit Court for the District of Columbia, sitting in Alexandria, in an action of debt; and the case depends on the laws of Virginia, as they stood when jurisdiction over the District was first exercised by Congress.
By the law of Virginia, the proceedings, until an issue is made up in a cause, are taken in the clerk's office at monthly rules, and judgments by default become final on the last day of the succeeding term, till which day the defendant in any such action has a legal right to set the judgment aside, and to plead to issue. The Circuit Court held its regular session in April, 1818, and continued to sit regularly till the 16th day of May, when it adjourned to the fourth Monday of the following June. The clerk, considering the day on which the Court adjourned as the last day of the term, and the judgments at the rules as having, on that day, become final, issued an execution on one of these judgments, which had been obtained by the plaintiffs against Cave Withers and his common bail. When the Court met in June, the defendant appeared, and, on motion, was allowed to set aside the office judgment, give special bail, and plead to issue. The execution was, consequently, quashed. In the course of the term judg
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ment was confessed by the defendant, for the sum claimed in the declaration, and a writ of error was then sued out, the object of which was to reverse the last judgment, and set aside all proceedings subsequent to the 16th of May, on the idea, that the judgment rendered at the rules became final on that day.
The sole question in the cause is, whether the adjournment from the 16th of May to the fourth Monday in June, was a continuation of the April term, or constituted a distinct term ?
There being nothing in any act of Congress which prevents the Courts of the District from exercising a power common to all Courts, that of adjourning to a distant day; the adjournment on the 16th of May to the fourth Monday in June, would be a continuance of the same term, unless a special act of Congress, expressly enabling the Courts of the District to hold adjourned sessions, may be supposed to vary the law of the case. That act is in these words: “ And the said Courts are hereby invested with the same power of holding adjourned sessions that are exercised by the Courts of Maryland." These words do not, in themselves, purport to vary the character of the session. They do not make the adjourned session a distinct session. They were, probably, inserted from abundant caution, and are to be ascribed to an apprehension, that Courts did not possess the power to adjourn to a distant day, until they should be enabled so to do by a legislative act. But this act, affirming a pre-existing power, ought not to be construed to vary the nature of that power, unless words are employed which manifest