
    Abijah D. Hunt vs. Richard Nugent.
    "Where a suit was instituted against the maker and indorsers of a note, and, at one term of the court, previous to the trial, verdict and final judgment in the case were rendered, an order of continuance as to one of the indorsers, and of final judgment as to the other parties was made, to which no objection at the time was taken; but, subsequently, when the cause came on for trial, the suit was dismissed as to those against whom the final judgment had been previously taken, and a verdict and judgment rendered against the indorser alone, as to whom the continuance was entered; no bill of exceptions being taken to the trial and judgment against the indorser ; it was held, that the verdict and judgment against the indorser were properly taken, and should not be set aside.
    "Whether, if the declaration aver that due legal notice of protest was given, it will be sustained by proof, that diligent search was made in order to ascertain the indorser’s residence, but in vain ; — Qumre.
    
    
      Anote, dated January 1, 1837, at Cayuga, in Hinds county, fell due February 1, 1838, at the Grand Gulf Bank, at Grand Gulf, Claiborne county, it was protested for non-payment at maturity, and suit brought upon it against the indorser; on the trial, it was proved, that in January, 1838, the indorser had removed to a place in Hinds county, two miles and a half from Utica post-office in that county, and six miles from Cayuga; there was no evidence of the previous place of residence of the indorser; the notary, who protested the note, inquired of the officer of the bank where it was payable, to what point he must direct his notice, and was informed to Cayuga, and he accordingly did so : Held, the notice was sufficient to bind the indorser.
    In error, from the circuit court of Jefferson county; Hon. Stanhope Posey, judge.
    Richard Nugent sued D. F. Standler, as maker, and Joseph S. Ellison, Abijah D. Hunt and W. G. Guice as indorsers, of a note, under the act of 1837. The declaration described the note as dated January 1, 1837, for $1000, due on the first of February, 1838, at the Grand Gulf Bank, at Grand Gulf, in Claiborne county, and alleged demand at the bank on the day of maturity, and due notice to the indorsers.
    Suit was commenced to the May term, 1844, of the circuit court. The writ was executed on Standler, 4th of January, 1844, and duplicates sent to Hinds county, which were executed on Hunt, on the 20th of March, 1844, and returned “not found” as to Ellison and Guice. An alias was ordered by the court, at the November term, 1844, for Guice, which was returned “not found.” No alias was ordered for Ellison. At the May term, 1844, of the court, the defendant, Hunt, by attorney, appeared and pleaded non assumpsit, and the cause was continued; and again continued, at the May term, 1845. At the April term, 1846, the following entry was made: “This cause was continued as to A. D. Hunt; it is therefore considered by the court, that the plaintiff recover of the said defendants, the sum of $908, for his damages in this behalf sustained, and also for his costs herein expended.”
    At the October term, 1846, the record recites as follows, viz.: “ Discontinued as to Ellison and Guice. Now came the parties, by attorneys and a jury, to try the issue between plaintiff and defendant, Hunt being called, came, to wit, &c.; who, being duly impanelled, &c., find that said defendant, Hunt, did assume, &c., and assess the plaintiff’s damages at $889.15;” upon which the court rendered judgment against Hunt accordingly.
    At the same term, this motion was made, viz.: “Motion to set aside verdict in this case, because the same is contrary to law and evidence.”
    The motion was overruled.
    The following motion appears in the record.
    “Motion to set aside the following entry on the minutes at the April term, to wit, ‘continued as to Hunt, and judgment by default final for the sum of $908. It is therefore considered by the court, that the plaintiff recover of the defendants the sum above mentioned, and also costs; ’ and correct said entry according to the judge’s entry on his docket, so as to read, ‘Judgment by default against David F. Standler, and continued,’ the entry, at the last term of this court, on the minutes, being a clerical error, contrary to the entry in the handwriting of the judge, on the docket.”
    Underneath this motion, in the record, are written the words, “ Motion continued.”
    Then follows in the record the bill of exceptions of Hunt to the refusal to grant a new trial.’ It begins in this way, viz.:
    “ Be it remembered, that on the trial of the above cause, defendant Hunt proved by the testimony of Hensaw and McClure, that on 1st day of February, 1838, said Hunt’s nearest and usual post-office was at Utica, in Hinds county, and that that post-office was but two and a half miles from Hunt’s residence, while the post-office at Cayuga was six miles distant; and that said Hunt moved to said residence in January, 1838, and has since resided there.”
    The plaintiff proved by Lewis Craney, that he, as a notary public, protested the note sued on; the note was duly protested for non-payment, on the day it fell due, after a demand at the Grand Gulf Bank, of the teller; that he did not know the residence of Hunt, the indorser, but inquired where it was payable at the bank, and was instructed by the officers of the bank to send notice to Caynga, Hinds county, to which place he sent the notice, by depositing it in the post-office in time to go by the next mail.
    This being all the evidence, the court instructed the jury, at the request of the plaintiff, that,
    “If the jury believe, from the testimony, that the notary, when he protested said note and sent notice, did not know where the indorsers resided, and used reasonable diligence to ascertain by inquiry where such parties resided, notice sent to them, directed to the place where said .note is dated, is sufficient.”
    The court, at the request of defendant, gave the following instruction, to wit: “ The court will charge the jury, that if they believe, from the evidence, that the notary did not use reasonable diligence to ascertain the residence and post-office of defendant, Hunt, before sending notice to Cayuga; and that no notice of protest of said note was sent to Hunt after his nearest post-office was ascertained, either by the notary or owner of the note, then the jury must find for the defendant; and that the question of reasonable diligence is a matter to be decided by the jury alone.
    2. That if the jury believe, from the evidence, that the notice of protest was sent to defendant, Hunt, at Cayuga post-office, in Hinds county; and that, at the time, Hunt’s post-office was at Utica, and that his nearest and usual post-office was Utica, then they must find for the defendant; unless they believe, from the evidence, that the holder used reasonable diligence to ascertain his post-office, and failed to ascertain the same.
    Hunt, alone, sued out this writ of error, and assigned the following errors, to wit:
    1. The court erred in continuing the cause, at April, 1846, as to Hunt, one of several defendants, and indorsers of the note, and at the same time entering up a final judgment, against the defendants, generally.
    2. The refusal of the court below to set aside the verdict, on application of Hunt, on the ground that the verdict was contrary to law and evidence, was erroneous.
    
      3. The court erred in admitting evidence as to the diligence used by the notary to ascertain the residence of the indorser, Hunt; the declaration containing a positive allegation of due notice to him, and not alleging facts and circumstances dispensing with due notice.
    
      Amos E. Johnston, for plaintiff in error.
    1. The judgment in April, 1846, against the maker and first and second indorsers of the note, and continuance as to Hunt, and the judgment against Hunt, at October, 1846, were erroneous. A judgment is an entire thing, incapable of division ; but the judgment against the maker, in April, is one judgment, and that against the indorser in October, is a second judgment; two fi. fas. might issue, one on each judgment, and a double satisfaction be had. The subsequent dismission was as to the two indorsers on whom process was not served, but against whom judgment had been previously rendered; the judgment against the maker remained. Prewett v. Caruthers, 7 How. (Mi.) R. 304; Falconer v. Frazier, 7 S. & M. 235; Davis v. Tiernan, 2 How. (Mi.) R. 805.
    2. The evidence of the notary did not establish the liability of the indorser; a new trial should have been granted. Bay. on Bills, 2d Am. edit. 280; Beveridge v. Bur gis, 3 Oampb. 262; Barmoell v. Mitchell, 3 Conn. 101; Bank of Utica v. De Mott, 13 Johns. R. 432; Reid v. Payne, 16 lb. 218; Story on Bills, 334, § 299; Chitty on Bills, chap. x. 516, 524, 525, (8th edit. 1833); 3 Kent’s Comm. (5th edit.) 109; Fisher v. Evans, 5 Binn. R. 542; Bateman v. Joseph, 12 East’s R. 433; Moopes and Bogart v. Newman, 2 S. & M. 71; Godley v. Goodloe, 6 lb. 255.
    3. There is no correspondence between the allegata and probata ; the allegation is of due notice; the proof, of diligent search, yet failure to give legal notice. This is not sufficient. Hoopes and Bogart v. Newman, 2 S. & M. 71.
    
    
      J. B. Thrasher, for defendant in error.
    1. The first and third assignments of error cannot enter into the consideration of this court, because they are not presented by bill of exceptions. Commercial Bank of Manchester v. Marlin's Heirs, 9 S. & M. 613; Doe ex dem. Helm v. Natchez Ins. Co. 8 lb. 205; Neeley v. Planters Bank, 4 lb. 113; Sessions v. Reynolds, 7 lb. 130.
    2. The objection to the rendition of the judgment against Standler cannot avail Hunt; Standler is no party to this writ of error; he alone can complain of the wrong, if it be wrong judgment against him. Hunt, by going to trial, as to himself, on his own plea, waived all previous errors or objections; none of which were excepted to at the time. See Smedes’s Digest, 77, and authorities cited.
    3. The disagreement alleged to exist between the averments and proof, does not in fact exist; notice was sent on due inquiry; this is legal notice ; and is not the case of inquiry and failure to find residence, and not sending notice. Chapman v. Lipscombe, 1 Johns. R. 294. But evidence of diligence is admissible under the allegation of notice. Chit, on Bills, 389; 2 Smith’s R. 223, 224.
    4. The notice actually sent was good, legal notice, sufficient to bind the indorser. McMurtrie v. Jones, 3 Wash. C. C. R. 206 ; Moodie v. Morrall, 1 Sou. Car. R. 307; Bank of Utica v. Phillips, 3 Wend. R. 408.
    5. The question of diligence was for the jury; they have decided it; it should not be disturbed. Biclcson v. Parker, 3 Dan. 219 ; Harris, v. Holliday, 4 lb. 338.
   Mr. Justice ThacheR

delivered the opinion of the court.

This was an action of assumpsit, instituted against the maker and indorsers of a promissory note.

At a term previous to the trial, verdict and final judgment of the cause were rendered, an order of continuance of the cause, as to one defendant, and.of final judgment as to all the defendants, was made in the circuit court. No objection to this proceeding was made at the time, but at a subsequent term the cause came on for trial, and the order referred to seems to have been disregarded by parties. The action was then dismissed as to the defendants in court, excepting the present plaintiff in error, against ■whom a verdict and judgment, as indorser, -were rendered. At the time of the trial, there was a clear waiver of any error, from the fact of going into trial without objection, even if any could have availed by claiming exceptions at the time the order was made. The proceedings in a cause constitute a whole, and it is the final judgment, in such a case, which binds a party upon which it operates. No prejudice can by possibility happen to the other defendants, as to whom the action was ultimately dismissed ; and the plaintiff in error is the party as to whom the cause was continued in the above-mentioned order, and to which order he certainly has no good ground of complaint; there is no bill of exceptions, embracing this point.

Two other objections were made to the legality of the judgment against Hunt, the defendant below. These consist of the objection that legal notice of protest was not given to him as indorser, and that, while the declaration avers that due legal notice was in fact given, the proof shows merely diligent search, in vain, to ascertain his real residence, which does not support the averment.

Upon the second point, it may be remarked that in this case a notice was actually sent, and it is not a case of a failure to send notice, after diligent and vain search to ascertain the residence of the indorser. But this point, also, is not made by the bill of exceptions.

The only question, therefore, now is, as to the sufficiency of the notice actually sent. The facts were these : The note was dated at Cayuga, which was proved to be in Hinds county, the 1st day of January, 1837, and matured on the 1st day of February, 1838. It was proved that the defendant' removed to within two miles and a half of the post-office at Utica, Hinds county, in January, 1838, and that Cayuga post-office was six miles from the residence to which he had removed. The note was payable at the Grand Gulf Bank, and the notary, not being informed of the residence of the defendant, inquired of the officers of the bank where to send the notice of protest, and was by them directed to send the notice to Cayuga post-office, which was done. There was no evidence as to the residence of the defendant at the time of the making of the note, or his indorsement thereof, or any time until January, 1838.

The removal of the defendant to the neighborhood of Utica, from all that appears, might have taken place on the last day of January, which was the eve of the maturity of the note, and, clearly, without a further showing of information of such removal, or publicity given to it previously, a notice there could not be required. The question is consequently narrowed down to the inquiry whether, while the note was dated at Cayuga, was payable at the bank, and its officers, upon being asked, directed the notice to be sent to Cayuga, the notice was sufficient.

The notary was directed, at the place where the note was made payable, to send the notice to the place where the note was dated. The information he received was direct and positive. It was given to him at the place where it was most natural for him to inquire, that is to say, the place where the parties had agreed the note should be payable. He had no reason to doubt but that the information he received was certain, because it was given without hesitation, and not as a mere opinion. He was put at rest upon the subject. In the case of Chapman v. Lipscombe, 1 Johns. 294, the plaintiff made inquiries in New York to ascertain the residence of the drawer, and of those whom he supposed most able to inform him. He notified, according to his information, although wrongly. He was considered to have used all the diligence required.

In the case at bar, under all the peculiar circumstances, we think the notice was sufficient.

Judgment affirmed.  