
    Supreme Court of Errors and Appeals. Nashville.
    1823.
    A. AND G. Mc’NEILL v. ELAM.
    An entry on the margin of the notary’s official book, opposite the protest, in these words, “ Indorser duly notified verbally, W. Perkins, N. P.,” which entry was made by the notary’s daughter, and by his instructions, is admissible as evidence, the notary being dead, to prove notice, and will be sufficient when coupled with proof of the notary’s habit of business. [See the last preceding case.]
    
      Each subsequent indorser acts upon this idea, that each preceding indorser has insured him against damage, and promised indemnification, and may, therefore, upon taking up the paper, recover from such prior indorser the full amount of the note. [Acc. Marr v. Johnson, 9 T. 4, citing this case.]
   Haywood, J.

On the 13th of March, 1819, K. Green made a bill single, to pay to Elam, at the Nashville Bank, $ 400. Green had borrowed money from the bank, and secured the payment by giving Elam and the Mc’Neills as indorsers upon his paper, Elam’s name being first upon the note. The Mc’Neills took up the note, and sued Elam as the immediate indorser to them. The Circuit’Court instructed the jury that the plaintiffs were entitled to recover the whole sum, and not half of it only.

To prove notice to the defendant of non-payment by the maker, the protest of the notary was read, which stated a demand on the proper day. The copy of the protest on the book of Mr. Perkins, the notary public, was produced, and opposite thereto, in the margin, this entry: “ Indorser duly notified verbally; W. Perkins,' N. P.” ; which indorsement was in the handwriting of his daughter, who acted as clerk for her father, and by his instructions. The said W. Perkins died in 1819. His practice was when he protested a note to give notice to the indorser, on the same day, or the next day after the note was protested for non-payment. The daughter knew nothing; of the transactions herself, and only made the entries pursuant to her father’s instructions. All this was in proof, and that Mr. Perkins was punctual in the performance of his duties, and that he esteemed giving notices as above a part of his duty. It is made a question, whether this is admissible evidence ? Upon the principles adopted by the Court in Webb and Nichols, this testimony must be deemed admissible. And as to the other question, it must be considered that the direction of the Court to the jury, and their finding, was correct. Each subsequent indorser acts upon the idea, that each preceding one has insured him against damage, and promised indemnification against it. He should have the expectations realized which were thus raised, with the knowledge and by the implied assent of the prior indorser. The law is settled in various decided cases, and as we think upon just grounds. 3 E. 177; 7 Johnston, 361; 5 Taunton; 1 Esp. 261; 2 Cains, 343 ; 4 Cranch, 141 ; 3 Esp. 461. My opinion is that the judgment should be affirmed.

Whyte, J.

of the same opinion.

Judgment affirmed.  