Majority — DANIEL J.
p. 515John B. Camden, Plaintiff in error, v. Thomas C. Doremus, Cornelius R. Suydam, James Suydam, and John M. Nixon, Defendants in error.
Syllabus
Where a .general.objection is made, in the court below, to the reception of testimony, without' stating the grounds of the objection, this court considers- it. as vague and nugatory; nor ought it-'to haye been tolerated.in the court below.Where at the time of the endorsement and transfer of a negotiable note, an agreement was made that the holder should spnd it for collection..to the bank at which it was, on its face, made-payable, and in the event of its not being paid at maturity, should use reasonable and due diligence to collect it from the drawer and’prior'endorsers before .resorting to the last endorser, the - holder is bound to conditions beyond those which are implied in the ordinary, transfer and receipt of commercial instruments.
■ Evidence of the general custom of-banks to give previous notice .to the payer, • of the time when notes will fall due, was' properly rejected, unless the witness ■could testifyas to the'practice of the'particular bank at which the note was . made payable.'
. A presentment and demand of payment of the note, at maturity, within banking hours, at the bank where the note was made payable, was a sufficient compliance with the contract to send it to the bank for collection.
The record of tysujt brought by the 'holder against the maker and prior endorsers was proper evidence of. reasonable and due diligence to collect the
- amount of the note from them; and it was a proper instruction, that if the jury believed that the prior endorsers had left the state and'were -insolvent, the holder of the,pote,was not bound to send executions to the counties where» ■ these endorsers-resided af the institution of the suit. •
The diligent and honest prosecution of a suit to judgment with a return of milla bona, has always been regarded as one of the extreme tests of due diligence.
And the ascertainment, upon correct and sufficient proofs, of entire and notorious insolvency, is recognised by the law as answering the demand.of due diligence, and as dispensing with the more dilatory evidence of a suit.
If the holder cannot obtain a judgment against the maker for the whole ^amount of the nóte, in consequence of the allowance of a set-off as between the maker and one of the prior endorsers, this is no bar to a full recovery against the last endorser, provided the holder has been guilty of no negligence.
p. 516
. This case was brought up, by writ of error, from the Circuit Court'of the United-States for the district of Missouri. •
The defen/dants in errpr were citizens of the state of New York and partners in trade under the name arid style of Doremus, Suy-dams and Nixon. The plaintiff in error was the surviving partner of the mercantile house of John B.'and Marbel Camden, which carried on business at St. Louis-under the name' and firm of J. B. and M. Camden. The plaintiff in- error was sued in- the court below as endorser of the following promissory note.
On the 8th of June, 1836, Ewing F. Calhoun executed this note,' viz.:
“$4219 90.
“ Twelve months after date, I promise to pay Judah Barrett, or order, four thousand two hundred and nineteen dollars and ninety ' cents, negotiable and payable at the Commercial Bank of Columbus, June 8, 1836. . Ewing F. Calhoun,
“ Mississippi + 1809.” . Columbus, Mississippi.”
Which note'was endorsed by Barrett to Sterling Tarpley, or order, by him to J. B. and M. Camden, or order, and by them to Doremus, Suydams-, and Nixon, or order.-■
On the 22d of August, 1836, the plaintiffs and defendant entered into the following agreement:
“ New Yorky August 22d, 1836.-.
“ Memorandum of an agreement" and trade made by and between Doremus, Suydams. and Nixon, of the city of New York, of the one -part, and J. B. & M. Camden, of the city of St. Louis, of the other part, witnesseth: Whereas, the said Camdens have this day sold and assigned unto the said Doremus, Suydams and Nixon, a note for four thousand two hundred and nineteen dollars, payable twelve months after date, and dated the eighth day of June, 1836, and negotiable and. payable at the .Commercial Bank of Columbus, Miss. ■ Executed by Ewing F. Calhoun to Judah Barrett, and endorsed by the said Judah Barrett and Sterling Tarpley and J. B. & M. Camden. Now, it is expressly understood and agreed by the contracting parties, that the said Doremus, Suydams. and Nixon, are to send the-said note to the said Commercial Bank of Columbus, Mississippi, for collection, and in the event of its not being paid at maturity, they aré -to use reasonable and due diligence to collect it of the drawer and two endorsers before they call upon the said Camdens; but in the event of its not' being made out of them,.then the said, Camdens bind and obligate themselves, so soon as informed of,the fact, to pay the said Doremus, Suydams and Nixon, the principal of., the said note, together with its interest and all legal costs they máy have incurred in attempting its collection.
J. B. '& M. Camden,
Doremus, Suydams & Nixon.” ■
p. 517
. The note not being paid at maturity, suit was brought bjf the endorsers against the plaintiff in error as surviving partner of the endorsers J. B. and M. Camden.
Upon the trial of the cause, the plaintiff, pffered to read in evidence sundry depositions, and also a voluminous.record, which aré all set forth in’full in the first bill of exceptions, but which it is impossible to insert here on account of their great length. They were,
. 1. The deposition of Thomas B. Winston, that he presented the note at the Commercial Bank of . Columbus, and demanded payment thereof, which was refused; that payment was demanded on the 10th of June,;l837, because the day of payment fell on Sunday; that it was protested, and notices thereof sent to the first, second, and third endorsers.
- 2. The deposition of Ewing F. Calhoun, proving iiis own signature ; the handwriting, of; the first and second endorsers; that he was sued at the’ first court after th.e note became due;. that the suit was prosecuted as diligently as possible to a judgment and. execution; that deponent continued to .reside in Lowndes county, Mississippi,but that at the rendition of the judgment Barrett resided , in South Carolina-, and Tarpley in Texas; that Barrett and Tarpley were both insolvent, and had no property within- the state of Mississippi, out-of which- to make the judgment, or any part thereof; -that at the trial deponent was allowed a set-off. against -Tarpley, of about $1500, .which.-Tarpley owed deponent at the .time of the commencement of the suit, and before-he received notice of Tarpley’s endorsement.
3. The deposition of Samuel F. Butterworth, that .the suit was •prosecuted as diligently as possible to judgment-and. execution; ;that at October term, 1838, a verdict was rendered for the plaintiffs/ .which was -set asidethat in April, 1839, another verdict was rendered, which was also set aside; that in December, 1839; a verdict was rendered for only $3498 46. upon which a fieri facias was issued, the statutes of the state not authorizing process against the person; that no property could be found out of which the execution or any, part thereof could be made.
4. A document purporting to be a transcript of the record of the' suit spoken of above, showing its progress up to .the final return of the' sheriff, which was as follows: “ The within named Ewing F. Calhoun, Judah Barrétt, and Sterling O. Tarpley, have no goods or chattels,-lands or tenements,'within my county, whereof I can make the sums within mentioned, or - any part thereof. March 28th, 1842.’-’ .
. Each one of. these papers was severally objected to by the'defendant, but the, court overruled the objection, and permitted, them to be read in evidence. The admission of these four papers constituted the ground of the first bill of exceptions.
Bill of exceptions No. 2. ■
p. 518
a Be it remembered, that on the trial of this cause, the plaintiffs, in addition to the evidence in the former bill of exceptions in this case contained, examined Pardon D. Tiffany-as a witness,'who testified, that shortly before this suit Was broiight, as well as after, he had conversations with'the defendant-in'relation to the claim’of the plaintiffs against him; and .the defendant told the witness that he’ had transferred’ the note in question in’ the present action to the plaintiffs, for goods purchased from them, and that at the time, he transferred the note to the plaintiffs'he was indifferent whether they took it or not, as he considered some, of the parties thereto as-good as. George Collier, (who is known to the court and jury=as a very rich man.) Witness did not know whether defendant .saw the note or .not. Thé,witness received, a copy of-the record of the suit in Lowndesmounty, Mississippi, brought by the-plaintiffs against Ewing F. Calhoun, the maker of the note, and Judah Bhrrett and Sterling Tarpley, the endorsers; but witness could not say whether he received the copy from Mr. Adams, the agent of the plaintiffs-, or from the defendant, or from Mr. Ganiber, the counsel of the .defendant.The defendant in his conversation with witness was aware of the nature of the plaintiffs’ claim against him, and objected to the claim, alleging that the plaintiffs had not used, due diligence to, collect the amount of the note j he did not say that if he were satisfied that diligence had been Used héwould pay the claim; but he did say, that he was not bound to pay, and- would not pay the claim; but made.no other objection to the claim but want of diligence.’?
The plaintiffs next gave in evidence an act of the legislature of the state of Mississippi, entitled an. act to abolish imprisonment for debt,” approved February J15th, 1839, which act'the parties here in open court agree may b’e read in any court in which this cause may be pending, from the printed statutes of the state of Mississippi.
The plaintiffs then prbved the handwriting of the defendant to the following letter addressed to the plaintiffs, and read the same in evidence to the jury in the words following:
“ Saint Louis, October 24£h, 1839. uMessrs. Dohemus, Suydams & Nixon,'New Yorks “ Gents : — Your favour of the 11th inst. is received, and contents noted. It is quite out of our power to send- you any New Orleans bills for your note on E. F. Calhoun. ' We trust you will before long receive a judgment for the entire debt, interest and cost, and-that you will find by the virtue of an execution that ‘ insolvency has not passed upon them all.’ Those who have gone to Texas may y'et make a great .rise in .that fine country. We regret that the note has been so difficult of collection. We scarcely know which, you or we, made the worst trade; we-have many of the goods on hand we got for it. ' Your friends,
“ J. B. & M. Camden/.
p. 519
.“'Your message tó Mr. Homans, cashier, has been attended to, and delivered,”
It was- admitted, by defendant^-- counsel, that the endorsements on the note given in evidence were filled up in the handwriting of ■ Josiah Spalding, the counsel of the. plaintiffs in this action, for the purposes of this suit.. It was also admitted that the laws’of-the state of New York placed tfie liability of endorsers upon promissory notes on.the same footing with the liability of endorsers upon inland bills of exchange under the general law merchant;
..The plaintiffs having here closed,, their case, the defendant produced one William C. Anderson- as a witness, who, being sworn, testified that he had been employed in seyeral banks, and had conducted oné in St. Louis himself;, that the practice in banks in relation to. notes deposited with them for collection, was to give’notice to the payer of the note that it was in. the bank, and when it would become due; that the effect on the credit óf a payer, .of a failure to pay the noté when it becáme due, was different in eastern and western banks. In banks at the .east, paper deposited for collection was considered almost as sacred as paper discounted by the banks, and a failure to pay would stop the accommodation of the payer at the bank;-but in the western banks, the effect of permitting collection, paper to lie over was not of much consequence to the credit of the payer. The defendant’s counsel having asked the witness, whether ■a note presented at a bank for payment on the last day of grace, by a notary public, would be. considered as having been sent to the bánk for collection, within the meaning of the contract between plaintiffs and defendant, the question was objected to by the plaintiffs’ . counsel, and the ’court not only refused to aliow^the question to be answered, but rejected all testimony given by the witness* or which might be given, m relation to the practice of banks on notes deposited for collection, unless the witness could testify as to the practice or usage of the Commercial-Bank of Columbus, mentioned in the note of Calhoun; to which opinion of the court the defendant, by his counsel, excepts.
Instructions asked by defendant.
“The defendant, by his counsel, moved the court to instruct the jury, that the plaintiffs were bound to send the note of Ewing F. Calhoun, endorsed by -Judah Barrett and Sterling Tarpley, to the Commercial Bank of Columbus, Mississippi, for collection; and that, unless it is proved'to the satisfaction of the jury that this was done by the plaintiffs, they must find for- the defendant; which instruction was given to the jury by the court, with this explanation’: That if the jury believes the note was presented at the bank, and had [?] there, by the agent of the plaintiffs, at the banking hours on the day it fell due, so .as to be a valid demand on the maker, then it was duly at the bank, as required by the contract sued on. To - which explanatory instruction the'defend ant, by his counsel, excepts.
p. 520
• “ The defendant, by hife eoupsel,further riioved the court to instruct the jury, that the plaintiffs were bound to use diligence by suit .against Calhoun, the maker of the note, and Barrett-arid.Tarpley, the endorsers thereof, in order to collect the money.; and that if-the plaintiffs neglected to prosecute' their action with diligence against either of said partiesythe defendant is not responsible on his endorsement" of the note in question; which instruction was giveiyby the court.
“The defendant,"by his counsel, then movecl the court to instruct the jury, that the record from the Circuit Court of Lowndes county, given" in evidence, does not show due diligence by "suit against Calhoun, the maker, and Barrett and Tarpley, the endorsers, of the note in question; which" instruction the court refused to give, and in lieu thereof instructed the jury, that, so far as the record goes, it does show; due diligence on part of the plaintiffs; and if the jury; believe from the evidence, given in addition to the record, that the two. endorsers -had left the state of Mississippi, and were insolvent, and had left no property in that- state, at the time the judgment was rendered, that the 'plaintiffs were.nob-bound-to cause executions to be sent to" the counties where the endorsers respéctively resided at the time they were sued. To which opinions of the court, in refusing the instruction asked by the "défendant as-last above-mentioned, and in giving, the instruction in lieu thereof which was given by. the .court,' the defendant,, by his counsel, excepts. ■
- ‘“The defendant, by his counsel, then moved the court to instruct the jury, that the plaintiffs, under the law of Mississippi, "were entitled'to a judgment .against Tarpley "for the full amount of the noté, notwithstanding "any payment or set-off befweén Calhoun, .the maker of the note, and Tarpley, the endorser"', and that, if the plaintiffs have.neglected to assert their "right to such judgment, and have suffered a judgment by their neglect to pass for a smaller amount, the defendant is discharged "by such neglect for all accountability for the sum thus lost; which instructions the court refused to give, because the record from Mississippi furnished all the evidence on the subject to which this instruction refers, and no negligence appears from said record in prosecuting the suit against Tarpley; to which opinion "of the court the defendant, by his counsel, excepts. And the defendant, by his counsel, prays the court to sign and seal this his bill of exceptions and that the same may be made part of the record, which is done. J. Cateon, [l. s."
R. W. Wells, [l. s,"
' John J. Hardin, for plaintiff in error.
Z. Collins Lee, for defendants in error.
Hardin's argument-was as follows:
The points now arising for the consideration of the court, are: .
1. Were the instructions asked improperly refused; and those delivered in lieu thereof improperly given?
p. 521
."2. Were the depositions', or any one of them,, improperly permitted' to be read in evidence?
■ 3. Does the record from Mississippi show the use of reasonable and due diligence?
• The contract was not complied with, by defendants in error, in this:
They were to “ send the said note to the Commercial Bank of Columbus, Mississippi, for.collection.” This they did not do, and there is no evidence that the bank ever had it for collection. It is true this note was protested for non-payment on the last day of grace; but there is a wide difference between sending a note to a bank for collection, and merely presenting it for payment on the last day of grace. Banks, universally, are collecting agents; they always give •notice of the time of payment, and of the amounts due, to the debtors whose notes are left with them for collection. It is an injury to a man’s credit, and not unfrequently destroys his business character, not to provide the means of paying a note left with a bank for collection, andt of which he has been notified. ' These reasons must' have operated with plaintiff in ■ error in inducing him to require the note to be sent to the bank for collection. Calhoun, as appears from the record, lived in the town where the Columbus Bank was situated; and if he had been notified that the note was left in the bank for collection, he. might have had an opportunity of providing for its liquidation. Nor will it do to say that the presentation of the note for payment was the same- thing in substance as sending it to the bank for collection. The plaintiff in error did not think so, and at any rate he has required the stipulation that the note should be sent to the bank for collection by defendants in error; and the defendants in error have nó right to say that, although they did not comply, they did what amounts tomearly the same thing. The sending the note to the bank for collection was a condition precedent to the liability of plaintiff in error, and should be shown to have been strictly complied with by defendants in error.
Suppose, for instance, as is'the fact, though it does not appear on the record, that the note was sent to the Columbus Bank of Georgia, and did not reach the agent of defendants in error in Mississippi until the last day of grace, when it was forthwith protésted. . Tins was not a compliance with the letter or spirit of the contract;
In this view of the case, it was proper to prove what was the usage of banks with, regard to paper left with them for collection, and the testimony of W. C. Anderson, page 519, was therefore pertinent. This testimony was excluded by the court, and was therefore, error. . .
The first instruction asked by the plaintiff in error .in the court below was, therefore, proper, and was erroneously refused-.
The depositions were improperly permitted to be read.
1st Objection. They were taken before a “ judge of the ninth
p. 522
judicial district of Mississippi.” The law of 1789 makes no men-tion of such an officer as authorized to take depositions. If it is said' that such judges were judges of a “ Court of Common Pleas,” within the meaning of that law, it is answered, that if so, that fact should appear affirmatively in the certificate of authentication. No evidence aliunde being introduced, the deposition itself shojild contain the complete evidence that it was taken by a legally authorized officer. 1 Peters, 355.
• 2d Objection. The depositions were taken de Ijene esse, and the ' certificate does not comply, either with the letter dr spirit of the law. The 30th section of the Judiciary Act of 1789. provides for taking, such depositions when the witness resides more than á hundred miles from the place of trial, upon giving due notice of the time and place of taking the deposition “ to the adverse party, or his attorney, as either may be nearest, if either is within a hundred miles of the place of caption.”
This law, being in derogation of the common law, must be strictly complied with. 1 Peters, 355; 3 Cranch, 297 .
The certificate of the judge attached to each one of the depositions, states that no notification was given to plaintiff in error of the taking of the said depositions, “ because neither the said John B. Camden, nor his counsel, live within one hundred miles,” &c.
It was decided by the Supreme Court, 3-Cranch, 297, that in taking a deposition under a dedimus potestatem, the term “ attorney,” .used in the Virginia statute, meant an attorney in fact, and not an attorney at law. The words of the Virginia státute — sée Tate’s Digest, p. 21Ct, sects. 18 and 15 — are, on giving notice to the adverse party, his attorney, of agent.”
The inference from analogy, and from the decision in 3 Cranch, 297 , is irresistible, that the term “ attorney,” used in the 30th section of the law of 1789, means an attorney in fact, and not an attorney at law.
It therefore would be no compliance with the law to certify that “ neither the-adverse party, nor his attorney at law, live within one hundred miles,” &c. It seems to have been the idea of the judge who made the authentication, that the law of 1789 meant an attorney at law. But even if the law was construed to mean an attorney fit law, the word “ counsel,” used in the certificate, does not meet ' its requisition. A counsel and an attorney are two'distinct legal . officers. - Their duties may be, but are not necessarily, discharged by the same person. . It is the province of an attorney to .prepare a case, by making up the pleadings, taking depositions, &e.; whilst the counsel in the cause manages-it in court after the case is prepared by the attorney to his hand. The plaintiff in error might not have-had a counsel within a hundred miles, and yet have had an attorney at law. But as a counsel is neither an attorney at law or an- attorney in fact,-non constat, but that the plaintiff in error had an
p. 523
attorney living within one hundred milés, and' the defendants in, error failed to- give, him notice, and therefore have had the authentication so made as to prevent this fact from appearing. The law being in derogation of a man’s common law rights, and the depositions being taken ex parte, the authentication should exclude every conclusion which could in reason be made against the legality and formality of taking the deposition. 1 Peters, 355. They should, therefore, have been excluded from the jury.
. 3d Objection. The deposition of Thos. B. Winston should have, been excluded, because he was not- sworn to testify “ the whole truth.” He was sworn “to testify the truth, and nothing else but the truth.” Now, the 30th section of the act of 1789, authorizing the taking,.of these depositions, expressly provides that “ the witness is to be carefully examined, and cautioned, and sworn, or affirmed, to testify the whole truth.” This was not done, and the deposition, therefore, should have been excluded. This is analogous to the case where a witness does not answer the general interrogatory, “ Do you- know any thing further ?” Such a neglect is sufficient to vitiate the deposition. 3 Wash; 109.
4th Objection. The deposition of S. F. Butter.worth'•should have been excluded for imperfection or diminution. It begins by stating, “ That the annexed note was sued,” See.; and no note is annexed, or set out in the deposition. Nor could any one tell who were the parties to the note from any thing which is contained in the deposition, for their names .are not even mentioned. The court cannot tell, whether it was the note here sued on that the witness had before him, and intended to have annexed to his deposition, or whether it Was not an entirely different instrument.
This defect cannot.be supplied by reference to the deposition of Winston, for that is a distinct deposition, and was taken at. a different time — one-being taken on 15th January, and the other on 17th February, 1842. Each deposition must be perfect in itself.
;If the depositions are excluded, there is .no evidence whatever of any diligence. If the deposition of T. B. Winston, the acting notary ^public, is excluded, there is no testimony to show that the note was even presented for non-payment at the Columbus Bank. This being required by the contract, the other, testimony would not be sufficient to support ,the judgment. But the fact of permitting one improperly taken deposition to be read to the iurv is sufficient to reverse the judgment.
The court erred in refusing thq third instruction asked by plaintiff in error, which was substantially, that the record from Lowndes county does not show due diligence by suit, and also in the instruction given in lieu thereof by the co&rt. ■ First. The suit in Lowndes eounty, Mississippi, was instituted by defendants in error, against maker, and two first endorsers of the note here sued on; under a provision in the statutes of Mississippi. Howard and Hutchinson’s statutes
p. 524
of Mississippi, 597, sect. 33, authorizing this mode of instituting suit. A subsequent section of same law provides, (sect. '35, Howard and Hutchinson, 596,) “ The court shall receive the piea of non-assumpsit and no other, as a defence to the merits in'all suits brought in pursuance of this act, and all matters of difference may be given in evidence under the said plea. And it shall be lawful for the jury to render a verdict against part of the defendants, and in favour of the others, if the evidence before them require such a verdict, and the court shall render up the proper jtidgments in such verdicts against the defendants, which judgments and verdicts shall not be reversed, annulled, or set aside for want of form.”
. Sect. 41, same act and. page, provides, that defendants shall not sever in their pleas to the merits of the action.
Another act of Mississippi, Howard and Hutchinson, 374, sect. 12, provides, that “the defendant shall be allowed the benefit of any payment, discount, or: set-off, made, had, or possessed against ■ the same, (any assigned note or bill of exchange,) previous to the notice of the assignment.”
These provisions are innovations on the common law, and were evidently intended to create a new practice in pleadings,'trials, and rendering up jr dgments. If it is not so, then'the set-off of the maker of the n he, Calhoun, against the- second endorser, Tarpley, was all wrong, and there was a total want of diligence in defendant in error, in not taking th case to the appellate court and having it there decided, and in permittihg the' case to be continued for three years, for an improper defence in the Circuit Court.
. Admitting, then, that it was proper for Calhoun to claim his set-off against Tarpley,. it is clear that judgment should have been ren- ' dered against Calhoun for the amount of note and interest, after deducting the amount of the set-off. But it is equally clear, that as Tarpley endorsed the note without crediting thereon the amount .of the set-off, and without giving notice that there existed any such set-off,, that judgment should have been • rendered against him for the full amount of the .note and interest. The 35th section provides expressly for such cases.. And without such a provision, and a strict compliance with the law under it, most flagrant injustice would be done in numerous cases, and especially in .the present instance. Tarpley endorses' the note to plaintiff in error,, without notice of any set-off. Plaintiff in error endorses it to defendant in error, on the faith of Tarpley’s solvency. Defendant in error sues Calhoun and Tarpley, and takes a judgment against both, for the amount due from Calhoun to Tarpley) and wholly neglects to take . a judgment for the amount really and justly due by Tarpley, as the' law authorized. If plaintiff in error now pays up the note and • interest, and goes back on Tarpley, this judgment against Calhoun and Tarpley, for less than what Tarpley was legally liable for, will be a bar to a recovery for a greater sum. The defendant in error
p. 525
haying thus failed to obtain a judgment as he should have done for the whole amount due, and thus having prejudiced plaintiff in error, there was not due diligence used.
The 36th section of the statute of Mississippi, Howard and Hutchinson, 596, provides, that “new trials shall alone be granted to such defendants as the verdicts may have been wrongfully rendered against, and judgments shall be rendered against all the other defendants in pursuance of the verdict.” It appears a verdict was rendered on the 17th October, 1838, against all three of the de-, fendants, Calhoun, Barrett, and Tarpley, for $4102 77, and. judgment rendered thereon. On same page, it appears, that at same time “the defendant, E; F. Calhoun, moves the court to grant a new trial, &c.” On page 28, the case is docketed “ Doremus, Suy-dam and Nixon, v. Ewing. F. Calhounand it states, “ thereupon came on the motion of the defendant for a new trial, &c.,” which motion was sustained. This motion was made by one defendant, the reasons assigned are personal to himself^ and the new trial is granted him on his motion. According to the 36th section above, judgment should have been rendered against Barrett and Tarpley, the' endorsers, who did not join in the motion for a new-trial, and who had no- possible defence against the note. Yef defendant in error neglected to take any such judgment. And the case goes on as though they'were entitled to, and had granted to them, a new trial, and no final judgment is rendered until 27th December, 1839, more than a year after, wheiythese defendants had moved out of the state, as appears by the record. This is a clear case of a neglect of due diligence. See also a similar motion by Calhoun.
A similar neglect appears in another part of the record. Another statute of Mississippi, Howard and Hutchinson, 616, provides:
' “Sect. 11. Every new trial at law shall be on such terms and-conditions as the court shall direct; and no more than two new trials shall be granted to either party in the same cause.” Nov/ the record shows that three new trials were granted in this • case. Thé first verdict and new trial was- granted 21st October, 1837. The second on the. 17th October, 1838. The third on 19th April, 1839, and the fourth and last trial was, had on 27th December, 1839.. All these new trials were granted on motion of defendant Calhoun; arid after two were granted, it was error in the court in Mississippi, and it was gross neglect in defendants in error that they did not have it reversed. The Supreme C6urt of the state of Mississippi, 1 Smedes and Marshall, 421, have expressly decided that the court cannot' grant more than two new trials.-. By the neglect of defendants in error, a gross injury is done plaintiff in error in this: On the third trial, the ¿verdict was. for $4236 2'6, and on the last trial it was only for $3498 45; thus decreasing the amount which plaintiff.in error could thereafter recover againsc the maker and two first endorsers.
p. 526
Again: There was not due diligence shown in the record in this. There was never any service of process on defendants, Barrett and Tarpley, the first and -second endorsers; There never was á writ issued to the county wnere Tarpley resided. They never appeared in court and entered their appearance; nor do any attorneys énter their appearance for them. It is true the pleas, which are most carelessly drawn, use the words “ the said defendants say,” &c.; bat nowhere does it appear that they authorized an appearance; and . the whole defence is conducted by the attorneys for Calhoun. It is manifestly improper that this loose mode' of pleading in the name of defendants, by Calhoun’s attorney;- should be construed into an appearance ahd. defence for the endorsers; for the whole of Calhoun’s' defence ■ consisted of' a set-off. against Tarpley; and their interests in this suit were directly conflicting. The whole proceedings, therefore, against Barrett and Tarpley, were informal; and •there was want of diligence' in not bringing them, before" the court, by legal process, so that they might have had an opportunity of contesting Calhoun’s set-off.
Besides'this, there never was an execution, or “branch writ,-” issued to the counties., where, it appears from Winston’s deposition, that Barrett andTarpley resided; and in this there was a want of due diligence to use all the means of the law to collect the judgment.
There has also been an entire .failure of the defendants in error to obtain payment from Barrett and Tarpley. One of them moved to South Carolina, and the other to Texas. One of them is certainly within-the jurisdiction of our courts. As to the jurisdiction of our courts over the other, adhuc sub judice Us est.
Lee argued thus:
. The defendants in error,-by their counsel, respectfully submit with the record,.that there is no error in the rulings and decision of the Circuit Court of the United States, for Missouri, in the questions of law raised and adjudged in this case, and that' all the material and important facts -in the cause were fully considered by the jury, which were necessary for them to render, as they have done, a proper and just verdict in the premises; and that the judgment ought therefore to be affirmed. _ ■
But it is objected, and now argued by the plaintiff in error,'that the contract was not complied with, because “ the note was not sent to the'Bank of Columbus, Mississippi, for collection.” " The answer to this objection is obvious and conclusive, and to be found in the facts as sworn to by Thos.' B. Winston, by which the court will perceive that the usual and proper demand of payment of said note was made on the 10th. June, 1837, at the Bank of Columbus, Mississippi, and due .notices .of protest sent to the endorsers;, in a ' word, that all which the law merchant, or bank’-s usage required, as to the presentation and protest of the note, was strictly complied
p. 527
with;. and it is apprehended that'the term “ for collection,” used in the. contract between the parties,, cannot be made to .express more than a legal and proper.demand at the- maturity of the said note; and. that this was a compliance both with the contract and stipy-. íatioñ in the note itself; for collection at the bank means payment' thereon. The court was therefore right in limiting the action of the holders of the note to demand payment at the bank specified on the note, and during bank hours, &c. There, is, besides, nothing in this record to snow that any proper step was ‘omitted, or that the plaintiff in error ever understood the contract in the sense now. contended for by him. .
2. As-to one of the objections; that due process-was not served, of suit properly instituted against Barrett and Tarpley, there cari be no ground to question the, regularity of the proceedings; and the court, will find all necessary legal steps 'to have been promptly taken in strict accordance witii the-laws of Mississippi, to which the plaintiff in error has referred; and it is presumed that the ..attorney, entered upon the record as acting for Messrs. Barfett and Tarpley, acted in. good faith, and by their appointment, and beyond this the court cannot now look.-
The.court, too, rightly rejected the testimony of W. C. Anderson,. , because the usage of banks, east or west, and the opinion of the witness, could not be evidence, when the contract and note in question stipulated distinctly for the collection^or presentation of the said note at the Bank of Columbus, at Mississippi, whose usage alone was important to be known, and which it was presumed had- been known, and governed the parties at the time the contract was made. Another objection is-taken to the depositions in this case, hid-which it is contended were, inadmissible on several grounds.
. But-the defendants in error now confidently submit .that upon examination- of this -Judiciary Act of 1789, sect. 30th,-2. Laws U. S. 68, it will be -found that the depositions objected to were legally taken in due form, and in compliance with the law referred to, however strictly it may be construed.
The. deposition of Winston is certified to by the “ presiding' judge,” and that of Calhoun also by the judge of the court before whom the suit was pendingand another deposition is certified and-taken by the presiding judge of the ninth judicial district of Mississippi. This being, in the language of the* law,-taken before “ á judge, or justice,. &c. &c.”
The terms, qr titles; attomey'and counsel, between which some nice distinctions are 'drawn hi the argument,- are, by common consent and usage, now. regarded as convertible terms; and, indeed, the Judiciary Act, to which reference is made, does itself so speak of them. See .sect. 30th..
The law meant the attorney or counsel, not in fact, as is contended, but the party’s legal attorney or counsel, and generally-none but
p. 528
such can be of record, or act in court.; besides, the certificates to these depositions name the attorney in one or more instances.
So'also as to the objection.that one of the witnesses (Winston) was not sworn to tell the “ whole truth.” This -may bé a clerical or typographical omission,.as Ihe word “whole” truth is used in all the other depositions,; and even were it omitted by the judge, it is submitted whether, under the true intent and meaning of the Judiciaiy Act, séfct. 30, this would be fátal 'to the deposition.
. Another objection as to these depositions is made with reference to an omission, as it is alleged, of the note referred to in the deposition, as the. “ annexed note;” but be this as it may, the court will find;, that' the whole déposition taken together is full and distinct as to the particular-note, and nothing more was required.
' ..(Finally, as to the question of-due diligence : it cannot be denied that it is for the court, on the facts supposed,, to determiné the point of due diligence. , The question only is, whether the facts contemplated by the court’s direction prove “due and reasonable .diligence” under the agreement of Camden and Co. with the defendants in error. ■. Due and .reasonable diligence means “reasonable diligence.” But “ due” and “ reasonable” may, in truth, be regarded as convertible terms in this association.
: Was such -diligence used? The suit is shown to have been rigidly.and promptly prosecuted, without the remissness of a day, and with every delay accounted for under authority superior to' the party’s prevention or discretion.- And filially, s..fieri facias isáues . instantly, and a return appears of nulla bona, and it is shown that the -laws of Mississippi allow no ca. sa. It is further proved,, that at the tiine'of judgment the defendants were insolvent, and notoriously, so, (or at least known, tp • “ public” rumor to be so.).' It is in this case found that one of-the- defendants had gone to Texas when the judgment was obtained; but it is. not shown that that.change, of residence was known to these claimants, Or to their counsel. And if.it was, need there have been a pursuit of him into Texas,, and a roving capias to. explore for him whithersoever report might have sent him? Was this necessary, with proof, too,' of actual insolvency? Due diligence can.be required only because diligence may find and'seize property to pay the claim — and where there is insolvency due diligence has no ,object, or rather consists, at the . utmost stretch of obligation, in having-a return op execution of nulla bond. This retutn is m fact only a test, or,a form' of proof, of insolvency. Substantiated otherwise, the duty of .diligence has as truly been fulfilled by simply recovering judgment^anq by issuing execution upon it. Here insolvency is proved, and ►judicial ascertainment was not •requisite. And thé office of.; due diligencewas -accomplished by suit, and judgment, and .(though unnecessary) by the fruitless fieri facias. .
That the end of all. “ due diligence” is but to avail t>f solvency,
p. 529
or to establish insolvency, and that proof of insolvency, otherwise than judicially, supersedes all steps of further diligence., various-cases settle very clearly. See Saunders v. Marshall, 4 Hen. & Munf. 455, 458'; Thomas v. Wood, 4 Cowen, 172, '188; Boyer- v. Turner, admr. 3 Harr. & Johns. 285', 287; Reynolds et al. v. Douglass et al., 12 Peters, 503; and 1 Law Lib. 100, 169. The strictest exaction in such cases, however, never demanded more than a nulla bona to a fieri facias and a cay sa. to succeed it.. The first we have in this case; and the latter could not be had; it being abrogated by force -of the law of Mississippi against* imprisonment for debt* Thus, apart from the proved insolvency, wé have judicially tested the means of the defendant, and exhausted all diligence.
Another suit is prescribed to us here, and to be in Texas — and that for the vain chase of an insolvent man! Not more than one suit for the exercise "of diligence, wherever-imposed, is required. Any other view might multiply suits through an interminable series, and all recourse to an original party, dependent on eventual and long-deferred tests of insolvency, would prove but a shadow of a right, and a mere mockery. ,
The last objection needs scarcely a commer .-that the set-off- of about $1500 should not be allowed. This seúoff is explained by Calhoun’s testimony, not only substantiating the set-off", but proving that it was adversely adjudged. If so,< it must, as Calhoun’s testijnony proves it,, be regarded as an inevitable abatement from the note for ■vyhich the plamtiff'in error should suffer,, and not the defendants; whp contracted with Camden for the note as valid, for . what it purported to pay.
■ On the whole, the defendants in error insist that the record presents a case in which, after great delay, and long and expensive litigation, by Which they have performed every legal duty incumbent' on them by the contract entered into in 1836, as a security to them, from the present plaintiff" in error, their original debtor, for value received.
That now, after the lapse of more than nine years, they are met by objections merely technical, and with merit, which, if sustained by this honourable' court, would, indeed, make the forms of the law more potent than its justice, and turn out of the courts, remediless, and in some cases ruined, the honest creditor,- who may require their protection and vindication. .
delivered the opinion of the court.
No question has been raised on this record in reference to the original character of the instrument on which the action was founded ¿s a negotiable and commercial paper, nor in reference to the duties and obligations of the parties arising purely from their positions as parties to such a paper. And for aught that the record disoloses, every requirement of the law merchant, with respect to the note, or
p. 530
■ with respect to the rights of the endorsers thereof, appears to have been fulfilled. Presentment at maturity and within due time was made at the-Bank.of Columbus, Mississippi, and payment there demanded ; The failure to make payment was followed by regular protest, and by like notice to all the endorsers. The exceptions specifically urged by the deféndant in the court below, and.pressed in his behalf before this court, grow out. of an agreement signe'd by the firm of the Camdens and by the defendants in error at the time that the note of Calhoun was endorsed by the former to the latter, and which agreement, it is contended, bound the defendants in error to undertakings and acts- beyond the usual duties incumbent upon endorsers and holders of negotiable paper, and without the fulfilment of which no right of recovery against the plaintiffs in error could arise.. Before entering upon an examination of this agreement and of the questions which it has given rise to,.it is proper to dispose of an objection by the defendant in the court.below, which seems to have been aimed, at the entire testimony adduced by the plaintiffs, but whether at its competency, or relevancy, or at its regularity merely, that objection nowhere discloses. After each deposition offered in evidence by the plaintiffs to the jury, it is stated, that to the reading of such deposition the defendant, by his counsel, objected, and,that his objection was overruled. A-similar statement is made with regard to the record of the suit instituted in the court of Hinds county against Calhoun, the maker of the note, and offered in this cause as proof of due diligence. With regard to the . manner and the import of this objection, we would remark, that they were- of a kind that should not have been tolerated in the court below pending the trial of the issue before the jury. Upon the offer of testimony oral or written, extended and complicated as it may often prove, it could not be expected, upon the mere suggestion of an exception which did hot obviously cover the competency of the evidence, nor point to some definite or specific defect in its character, that the court should explore the entire mass for the ascertainment of defects whidh the objector himself either would not or could not point, to their view. It would, be more extraordinary still if, under the mask of such an objection, or mere hint at objection, .a party should be permitted in an appellate court to spring, upon his adversary defects which it did not appear he ever relied on; ■ and . which, if they had been openly and specifically all.egéd, might háve been easily cured. ’Tis' impossible that this court can determine, or do more than conjecture, as the objection is stated on this record, whether it applied to form or substance, or how far, in the view of it presented to the court below, if any particularview was so presented',, the court may have been warranted in overruling-it. We must consider objections of this character as vague and.nugatory, and as, if entitled to weight anywhere, certainly, as without weight before .an appellate court.
p. 531
Recurring to the agreement signed by the parties at the time of the transfer of the note, and to the instructions given and refused at the trial, with respect both to that agreement and the proceedings had in fulfilment thereof, wé "will remark, as to the'agreement itself, it' is clear that it bound the endorsees to conditions beyond those which- aré implied in the ordinary transfer and receipt of commercial instruments. Their- obligations, therefore, to these endorsers could by no means be fulfilled .by a compliance with such usual conditions. The language of the agreement is explicit.. The said Dore-mus,-Suydams and Nixon, were, to send the note passed to them to the Commercial .Bank of Columbus, Mississippi, for collection, and ;in the event of its not being paid at maturity, they were to use rea-, sonable and due diligence to collect it of the drawer and two previous endorsers before they were to call .upon the said Camdens, &c., &c. The obligation of the plaintiffs, as endorsees ánd holders, would have been fulfilled by-regular demand, protest, and notice; from these' a right of action would immediately have accrued; But the condition stipulated in the agreement is, that.before they can have any right, to make demand upon their endorsers, théy shall diligently endeavour .to. collect‘of the maker arid previous endorsers. With the view of showing a failure iri the plaintiffs in fulfilling their contract,, and of deducing therefrom their own exemption from responsibility, the- defendants first offered a witness to prove a difference in the practice .prevailing in eastern and western banks with respect to the management of paper deposited with them for collection'; and' inquired of tire witness whether a note presented at a bank for payment , on the last day of grace by a notary public would be considered as having been sent to the bank for collection, within the meaning of the contract. . This, question, on motion of the plaint tiff’s - counsel,-the court refused to. allow, and rejected all testimony by the witness in relation to the practice of banks as to notes deposited for collection, unless the witness could testify as to the practice or Usage of the Commercial Bank of Columbus. The ruling of the court-on this point we think was proper. The note was made payable at the Commercial Bank of Columbus; by the agreement between thje parties it was moreover expressly stipulated, that it- should be sent .to that bank for collection; if, then, any custom or practice other than general commercial usage were to control the management of the note, it was the usage of the. Bank of Columbus, certainly not the particular usage of other banks not mentioned in the contract, and perhaps' never within the contemplation 'of the parties to that contract. The next exception is taken upon an instruction asked of the court to the juiy, that unless it was proved to their satisfaction, that the note was .sent to the Bank of Columbus for collection by .the plaintiffs, they must fipd for the defendant. The court responded affirrnatively to the proposition that the note should have-been .sent to the Bank of Columbus for collection, but declared
p. 532
its opinion that by presentment and demand of payment of the note at maturity by the plaintiffs at the said bank, within banking hours, so as to make a legal demand on the makers, the requirement of the contract in this particular would be complied with. A nice distinction might be made between the language of the agreement and that of the instruction given upon this point.. The distinction, however, we should deem to be more apparent and verbal than substantial, and not to be applicable either to the intention of the parties, or to the real merits of the case. The note was payable at the Commercial Bank of Mississippi. The maker of the note resided in the county in which the bank was situated; the endorsers Barrett and Tarpley, who were to be looked to for' payment before proceeding against the Camdens, were also residents of the state of Mississippi. Every party'upon the note must be presumed to have been cognisant of jits character, and to have known when and where it was payable; and was bound to. prepare for his respective responsibility arising from his. undertaking. Other .notice than that to which the law entitled him- from his peculiar position upon the note, he had no right to claim. It .would be going too far, then, to imply any other right, or to admit it-upon ground less strong than that of express and un-equivocál contract. The language of the agreement we hold not to amount to .this, and as being satisfied with the interpretation that the note should be regularly presented and payment thereof demanded at the Commercial Bank of Columbus-, simply as -one of the means of collection to be adopted before recourse should be had to the .last endorsers.
But it has been contended, that had the note been placed under the management of the bank itself, notice might have been given by the bank to ¡the maker and prior endorsers, before the maturity of the-note, and that, thereby, provision might have been made to meet it when due. . In reply to this argument, it may be said, that the agreement itself expresses no such purpose or object, in requiring the note to be sent to the bank, and we do not think that such'an object is necessarily implied in the requisition. In the next place, there is no proof that the bank would have given notice to the maker and endorsers, previously to the maturity of the note; -noris there any tiling in the record to show that this would have been in-accordance with its practice in similar cases. • Under the silence of the contract itself, and in the absence of proof dehors the agreement, we are not. at liberty to set-up a presumption, which neither the language of the agreement nor justice to the parties imperatively calls for. .
The defendants also excepted to. the opinion of. the court, given upon, a prayer to instruct the jury, that the record of the suit by the plaintiffs, against the maker, and prior endorsers of the note, did not . show due diligence as to those parties. This instruction the court refused, but, in lieu thereof, instructed the jury, that the record was proper ■ evidence to show due diligence on the part of the plaintiff,
p. 533
and that if they believed, from the evidence submitted in addition to the record, that the endorsers Barrett and Trirpley had left the state of Mississippi, were insolvent, and had left no property in the state at the time Of the judgment in the said record, the plaintiffs were not bound to send executions to the counties in which those endorsers respectively resided at the time when suit was instituted against them.' • This court'can conceive no just .foundation for this exception" to the ruling of the Circuit Court. The condition to which the plaintiff was pledged, was the practice of due, that is, proper, just, reasonable, diligence; not to the performance of acts which were obviously useless, and from which expense and- injury might arise, but from which advantage certainly could not. The diligent . and honest prosecution of a suit to judgment, With a return of nulla bona, has. always been regarded as one of the extreme tests of due . diligence.
This phrase, and the. obligation it imports, inay be. satisfied, however,' by other means. The ascertainment, upon correct and suffi- . cient proofs, of entire or notorious, insolvency, is recognised by the law as answering the demand of due diligence, arid as dispensing, under such circumstances, with the more dilatory evidence of a suit; evidence which, in instances that it may be easy to imagine, might . prove prejudicial alike to him Who should exact, and to him who would supply it. Dulany v. Hodgkin, 5 Cranch, 333 ; Violet v. Patten, Ibid. 142; Yeaton v. Bank of Alexandria, Ibid. 49. We hold, therefore, that, both as to the instruction refused and as to that which was given upon this prayer, the decision of the Circuit Court-was correct.
We come-now to the last exception taken to the opinion of the Circuit Court upon the points presented to it. The defendant in that court insisted, that, by the -láw of Mississippi, the plaintiffs were entitled to ri recovery of the full. amount • of the note, against the maker rind .endorsers, subject to no set-off between the maker and endorsers; and that, if the. plaintiffs had, by their neglect, permitted a judgment for a smaller amount, the defendant was-discharged from all accountability for the sum thus lost. The court refused so to lay down the law, because the record froth the court, in Mississippi furnished the only evidence to which the instruction prayed for referred, arid no negligence appeared, from the record, in the prosecution of the suit against the defendants thereto. This refusal of the court was clearly right, and the reason assigned for it is quite satisfactory. The question to which the instruction asked was designed to apply, was that of due diligence. The timely and. bona fide prosecution, of a suit is, perhaps, the highest evidence of due diligence. If, in the conduct of that suit, the party should be impeded or wronged', by an erroneous decision of the tribunal haying cognisance of his case, that wrong could, on no just principle,rbe imputed to him as a fault. It certainly does not tend to show him to have" been the less diligent
p. 534
in the pursuit of his claim-; and least of all ehóuld he be prejudiced thereby, when the error insisted on.has been induced by the person who seeks' to avail himself of its existence.
Upon the whole, we consider the rtilings of the Circuit Court, upon the several points before it, to be correct; its judgment is, therefore, affirmed.