
    George W. Talbot versus John Clark.
    A bill of exchange, which was indorsed by C of New Orleans, and was payable in Boston, was owned by T of New York. The bill was dishonored by non-accept-once August 11, and H, who was T’s agent at Boston, wrote to T by mail the same day, informing him of the dishonor of the bill. T, by an answer dated August 13, requested H to give the notices. H accordingly had the notice to C put into the mail at Boston, August 19 Held, that the notice was not seasonable, even if T was justifiable in sending to H, instead of sending notice himself directly from New York to New Orleans.
    It seems, that T was bound to send notice direct from New York to New Orleans. In an action by the holder of a bill of exchange against an indorser, a subsequent indorser is not a competent witness to charge the defendant, without a release from the plaintiff.
    The deposition of a witness was rejected at the trial, on the ground of interest, the plaintiff nonsuited, and the judge who tried the case refused to take off the nonsuit in order to give the plaintiff an opportunity to execute a release to the witness and have his deposition taken anew. It was held, that this was a proper matter for the discretion of the judge, and that his refusal was right.
    It seems, that the plaintiff had no sufficient ground for the postponement of the trial or continuance of the action, even if his motion had been made before the nonsuit was ordered.
    It is not necessary to object to the competency of a witness on the ground of interest, at the time when his deposition is taken ; it is sufficient to make the objection at the trial.
    This was assumpsit against the defendant as indorser of a bill of exchange drawn by one Fislce at New Orleans, in favor of the defendant, on one Parsons at Boston, at sixty days’ sight. James Armour of New Orleans and C. N. Banc Iter of Philadelphia were also indorsers of the bill subsequently to the defendant.
    At the trial, before Parker C. J., it was proved, that the bill was duly presented for acceptance by Stevenson, a notary, on August 11th, 1825, and then dishonored. Stevenson then handed the bill to Hammond, the plaintiff’s agent in Boston, who said he would take care of the notices. Hammond on the same day wrote to the plaintiff at New York, by mail, slating the dishonor, and afterwards received answer by mail, dated August 13th, 1825, requesting that Hammond would cause notices of the dishonor to be given. Accordingly on the 19th of August, 1825, Stevenson, by request of Hammond, gave the notice by mail to the defendant, directed to New Orleans. The judge ruled that this notice was not m season, and ordered a nonsuit, with leave to move the Court to take it off.
    The plaintiff then offered the deposition of Bancker, who indorsed the bill to the plaintiff, in order to prove notice to the defendant. The deposition was objected to, on the ground that the witness was interested, it not appearing that he had been released by the plaintiff; and for this cause it was rejected by the judge, and the nonsuit was ordered to stand.
    Some days after, the counsel for the plaintiff made a written motion to take off the nonsuit and for a postponement of the trial, in order that he might have time to prove the execution of a release, if any was made before the deposition was taken, or to have a release given and the deposition taken anew.
    The motion was accompanied by the affidavit of the plaintiff’s counsel. The reasons stated in the motion are ; — l. That the rejection of the deposition was a surprise on the plaintiff’s counsel, who supposed, from the authority of various decisions, that it would have been admitted; and that if the counsel had been aware that there was any doubt as to the admissibility of the evidence without a release, he would have been prepared to show a release prior to the taking of the deposition, or would have caused the witness to be released by the plaintiff and a new deposition to be taken: — 2. That the deposition being taken at such a distance from the plaintiff, that he could not conveniently release the witness prior to the taking of the deposition, connected with the counsel’s confidence that the deposition was admissible without a release, was the reason that no release was obtained before the deposition was taken : —- 3. That no objection on behalf of the defendant was made, on the ground of interest, when the deposition was taken ; which the counsel for the plaintiff supposed necessary in order to sup port the objection at the trial: — 4. That Bancker, in his deposition, stated, that he considered himself discharged from his liability to the plaintiff as indorser, which statement the plam> tiff considered as sufficient evidence of a release. The motion was overruled by the judge.
    
      March 4th.
    
    The nonsuit was to be taken off or to stand, according tc> the opinion of the Court.
    
      Ward, for the plaintiff,
    in order to show that the notice to the defendant proved at the trial, was sufficient, cited Colt v. Noble, 5 Mass. R. 167; Whitwell v. Johnson, 17 Mass. R 453; Shed v. Brett, 1 Pick. 401; Hilton v. Shepard, 6 East, 14; 2 Stark. Ev. 269, 257.
    Bancker was not interested, for a judgment against Clark would not discharge him, until it was satisfied ; and in case of a judgment against Bancker, he would still have his remedy over against Clark, which remedy over is equivalent to an indemnity, or not being interested. Ridley v. Taylor, 13 East, 175; 2 Stark. Ev. 299, 300. In an action by the indorsee against the drawer of a bill, a prior indorser is a competent witness to prove that the defendant promised to pay the bill after it became due, and this because he has a remedy over. Stevens v. Lynch, 2 Campb. 332. So the acceptor of a bill is a competent witness against the drawer, to prove that he had in his hands no effects of the drawer when the bill was drawn. Staples v. Okines, 1 Esp. R. 332; 2 Stark. Ev. 299. The makers and indorsers of notes have in various cases been held to be competent witnesses. Skelding v. Warren, 15 Johns. R. 270; Woodhull v. Holmes, 10 Johns. R. 231.
    Even if Bancker was interested, it was too late to make the objection at the trial; it should have been made at the time wdien the deposition was taken. Potter v. Leeds, 1 Pick. 309; 2 Stark. Ev. 756.
    The motion was not for a continuance, but merely for a postponement, which was reasonable, as there had been no loches in procuring the release, on the part of the plaintiff’s counsel.
    
      Smith, for the defendant,
    to show that the notice was not seasonable, cited some of the cases relied on for the plaintiff, and Scott v. Lifford, 9 East, 347; Langdale v. Trimmer, 15 East, 291; Smith v. Mullett, 2 Campb. 208; Hussey v. Freeman, 10 Mass. R. 84; Whitwell v. Johnson, 17 Mass. R. 449; Bayley on Bills (Phil. & Sewall’s 1st edit.), 172. To show that Bancker as indorser was incompetent on the ground of interest, he cited Barnes v. Ball, 1 Mass. R. 73 Rice v. Stearns, 3 Mass. R. 225; Emerton v. Andrews, 4 Mass. R. 653; Martin v. Henrickson, 2 Ld. Raym. 1007; S. C. 1 Salk. 287; Steinmetz v. Currie, 1 Dallas, 272; Stille v. Lynch, 2 Dallas, 194; Respublica v. Ross, 2 Dallas, 239; Mann v. Sioann, 14 Johns. R. 270; Cummings v. Fisher, Anthon’s N. P. Cas. 7; Shaver v. Ehle, 16 Johns. R. 201; Herrick v. Whitney, 15 Johns. R. 240 ; Oteen v. Mann, 2 Day, 399. The cases of Birt v. Kershaw, 2 East, 458, and Dickinson v. Prentice, 4 Esp. 32, differ from the present. As to not making the objection to the competency of the witness at the time when the deposition was taken, before the magistrate taking it, he cited Mifflin v. Bingham, 1 Dallas, 275.
    
      March 23a
   Parker C. J.

delivered the opinion of the Court. We think it very clear that the notice proved to have been sent to the defendant by Stevenson the notary, was not early enough to hold the defendant as indorser. The bill was dishonored here on the 11th of August, 1825. Suppose the agent here, instead of causing notice to be given immediately, had done right, as he had no orders, in sending the bill to his principal in New York, the principal was then bound to give the notice himself in due season. There is no doubt, from the evidence, that he received news of the fate of the bill on its presentment to the drawee, on the 13th. He should have written from New York the next day ; instead of which, he sends the bill back to Boston, directing his agent here to cause notice to be given, and on the 19th the notary forwards the notice to New Orleans. The lapse of time between the 13th and 19th is not accounted for. Had the direction been sent to the post-office in New York on the 14th, as would be necessary in order to give seasonable notice, it must have reached Boston as early as the 16th or 17th at furthest ; why then postpone the notice until the 19th ? The law is entirely settled here, in England and in New York, that notice must be sent by the next day’s mail after knowledge of the dishonor of a bill. There is loches then, either in the plaintiff in New York, or his agent in Boston, and it is immaterial which.

Upon this evidence the defendant cannot be charged.

But the plaintiff proposed to prove an earlier notice from New York, by the deposition of Bancker, who stood on the bill as the immediate indorser to the plaintiff, the defendant being payee and first indorser. This deposition was excluded on the objection that Bancker was interested in the event of the suit. Cases have been cited by the plaintiff’s counsel to show that an indorser is a competent witness ; and there is no doubt that to some purposes and under some circumstances he is. The question turns altogether upon his interest, and not upon his character as a party to the bill. Prima facie he would seem to be interested to fix the payment upon Clark, for thereby he will be discharged ; and although a judgment against Clark without satisfaction will not release Bancker, yet the ability or inability of Clark to pay, w.e think cannot vary the question. There may be an attachment or security m some form, and if not, his insolvency is not to be presumed, and there is no evidence that it exists. It is suggested that the witness stands indifferent, but this is not so, Clark having no right of action against him. If the witness were a prior instead of a subsequent indorser, this argument would have some force. In our cases which have been cited, an indorser standing as this witness does has always been held to be incompetent.

There is then a motion to take off the nonsuit, in order that the plaintiff may have opportunity to take a new deposition of Bancker, after giving him a release. This was a matter of discretion with the judge at the trial, and was referred to the whole Court, rather for their advice than because it was conceived to be a question of law. I did not recollect, nor does any one of the other judges, any instance of granting such a motion for such a purpose, after a nonsuit in the ordinary course of trial. We all think it would be productive of great mischief, to sanction such a practice, and that it may as well be done after a verdict as after a nonsuit so entered. The motion for continuance should be made upon the rejection of the evidence and before any disposition of the cause.

But the purpose for which the motion is made is not sufficient. It is, to qualify a witness by a release (generally formal between the parties), who at the trial was incompetent. A continuance, or even a postponement, for such a purpose, is not recollected ; even before any disposition of the cause has taken place,

In this particular case there seemed to be no sufficien ground for indulgence. The objection was a general one m its nature, and must have been foreseen, and ought to have been provided against by other testimony or a release of this witness before bis deposition was taken.

It has been urged that the objection to the witness might be considered as waived, because exception was not taken when the commission issued or when the witness was examined; but we think such has not been the practice, and that an objection in court when the deposition is offered, is seasonable. The case of Potter v. Leeds, cited in support of the plaintiff’s position, is not similar. It was decided only, that all question as to the form of interrogatories should be made before the commission goes, to give the other party opportunity to vary his interrogatories. But objections to the competency of a witness should be made to the court at the trial.

The nonsuit cannot be taken off. 
      
       See Church v. Barlow, 9 Pick. 549; ¡7. S. Bank v. Barlow, 5 Mason 366; Ogden v. Dobbin, 2 Hall, (New York,) 112; Bayley on Bills, (2d Am edit.) 267,269.
     
      
       See Bayley on Bills, (2d Am. edit.) 595, and cases cited in notes.
     
      
       See Revised Stat. c. 94, § 26.
     