
    
      BULLARD vs. WILSON.
    
    West'n Dis'ct
    
      October, 1826
    Whether the endorsee take up a note by payment or by novation, his recourse against the endorser is the same.
    A witness swearing that he had no re collection of giving the notice of a protest, except from the memorandum on the back of it, but that he had no doubt he had given it, or he would not have made such a memorandum, is legal proof that the notice was given
   The plaintiff, as endorsee, sues the first endorser, who pleaded the general issue, and that the maker of the note obtained an accommodation on it in bank—that the note was not paid by the plaintiff, but the debt of which it is the evidence, was extinguished by novation, the bank having received in exchange another note for the amount of the one on which the maker might, according to agreement, have obtained a renewal—that the plaintiff is not the owner of the note sued on—that the defendant received no consideration for his endorsement, nor any notice of protest.

There was judgment against him, and he appealed.

The protest was produced, and the signatures of the makers and all the endorsers anterior to the plaintiff, were proven.

The cashier deposed that the maker of the note had accommodations in bank to a large amount, for which various notes were given, and the debt was gradually reduced, after several renewals, to the sum for which the note sued on, was given—several sums from different loans being consolidated. At the maturity of this note, the defendant declined farther endorsements, and the plaintiff took it up after protest, by paying the proportion required on the renewal, and giving his own note for the balance. The proceeds of this last note were placed to the plaintiff’s credit, and he gave a check for the whole amount of the note sued on, which was surrendered to him by the witness—who would not have paid the proceeds of the note last discounted, to the plaintiff, while he stood debtor on his endorsement, if the money had not been called for to pay the protested note.

The parish judge’s memorandum of his having given the protest to the defendant in person, was on the back of the protest, and he deposed he had no recollection of giving it, but he had no doubt of his having given it, as he never made such a memorandum without having given the notice.

The endorsement of the note by the defendant to Thomas, and by Thomas to the plaintiff, are proven—so is the protest, and the payment of the note by the plaintiff.

There is as good evidence of the notice as is possible to be expected. A notary who daily protests and gives notice of the protest of a great number of notes, cannot possibly be able, at a distance of time, to recollect the very day he gave a particular notice, unless, immediately after he gave it, he made a memorandum of it; and it is from the information which his memorandum recalls, that he can satisfactorily establish either the day, the place, or the person whom he notifies.

In this case, therefore, the notice is duly proven. See Alton & al. vs. Trimble & al. 4 Bibb, 22.

There was no novation of the debt of the maker of the note, nor of the defendant.

The plaintiff, being bound to pay the amount of the note, after protest and notice, discounted his own note, and paid its proceeds, and another sum of money to discharge his debt to the bank and acquire a right to his reimbursement, on the maker and the anterior endorsers. Whether he novated or paid his own debt is immaterial as by either way he was subrogated to the rights of the bank.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be affirmed with costs.

Bullard for the plaintiff, Wilson for the defendant.  