2 F. Cas. 615 | U.S. Circuit Court for the District of District of Columbia | 1831
after stating the substance of the special verdict, delivered the opinion of the court, (THRUSTON, Circuit Judge, absent.) These seem to be all the material facts found by the jury; upon which two questions are made: 1. Had the defendant any notice of the non-payment of the note upon which the suit is brought? 2. If he had, was it due notice?
1. If the same variance had existed in the declaration, it would have been fatal to the plaintiffs’ cause; the note could not have been given in evidence. The variance is substantial; a note for $1,400 is not a note for $1,457. The verdict states circumstances from which a jury might infer that the defendant understood it to be the note for $1,-400 which he had indorsed, but they do not draw the inference; and the court is not permitted to draw any inference of fact from the facts found by the jury. The court cannot say, therefore, that the defendant had any notice of the non-payment of the note mentioned in the declaration.
2. But if • he had any notice, we think it was too late. In Lenox v. Roberts, 2 Wheat. [15 U. S.] 373, it was decided, “that a demand of payment should be made upon the last day of grace, and notice of the default of the maker be put into the post-office early enough to be sent by the mail of the succeeding day. This was not done; and although it is found that it was the usage of the banks in Alexandria “to deliver out to the notary, on each day at 3 o’clock, all bills discounted by or to be paid at such banks, which became due on such day, for