Hart v. Wilson — 2 Wend. 513

Majority

p. 513

Hart and others vs. Wilson and others.

Headnote

Afteralapseof writte^memthe of the respecting no- u°e of Protest be read in evilink06’ in^tha chain of testI' many.

This was an action of assumpsit against the defendants as endorsers of a promissory note, dated the 4th June, 1818, for $1300, payable at the bank of Niagara in 90 days, tried at the Erie circuit, in April, 1828, before the Hon. John SALL, one of the circuit judges.

On the trial of the cause, the making and endorsement of the note were shewn. And after proof of the death of the notary who officiated for the bank .at the time, a memorandum on the back of the note signed by him was read in these , words ; “ demanded, protested and notices sent 5th September, 1818.” A register of notes protested by the notary was also produced, in which the note in question was entered, un

p. 514

der date of 5th September, 1818, and the names and residences of the endorsers set forth ; and opposite to their names, in a column headed “ how notified,” was entered these words : “ by leaving notice at post office.” Two witnesses (Ransom and Tracy) who were clerks to the notary in 1818, testified, the one that he made all the entries in the register respecting the note in question except the residences of the endorsers ; that he had a distinct recollection of the protest of the note, and that he put the notices of protest in the post office; but upon what particular day he did so, independently of the memorandum in the register, he could not state ; the other, that he recollected such a note was in the office; that the residences of the endorsers were inserted by him in the register ; that from that entry being made by him, it was. ..expressive to his understanding that the notices were made out and addressed by him, but independent of the memorandum he should have no recollection that the notices were made out. A verdict was taken for the plaintiffs, subject to the opinion of the court upon the admissibility of the above testimony, and also upon the effect of evidence given to prove usury in the discount of the note.

J. JL. Spencer, for plaintiffs.

E. Griffin, for defendants.

Regular notice to the defendant of non-payment of the note by the maker is clearly established by the testimony of Ransom and Tracy, and the written memorandum to which they were properly permitted to refer. They prove not only that notice was sent on the day when it ought to have been given, but they shew the manner in which it was given. It was sent by mail, directed to the defendants respectively, at the nearest post office to each. The note fell due in September, 1818, and it would be impossible after such a lapse of time to prove all the particulars necessary to establish a legal notice, without the aid of a written memorandum made at the time when the services were performed. The memorandum on the back of the note, of the demand, protest and notice signed by

p. 515

the notary, when taken in connection with the other evidence in the case, leaves no reasonable doubt as to the demand and notice. Halliday v. Martinett, (20 Johns. R. 168,) and Welch v. Bennet, ( 15 Mass. R. 380 ,) are precisely in point. It is equally clear the note was usurious. The testimony of Clark and Coffin, who were clerks in the bank when the note was discounted, establish beyond all question that the interest was computed upon the principle of 360 days to the year, and that such was the uniform practice of the bank : this is sufficienfto make out a case of usury.

Judgment for defendant.