21 Wend. 624 | N.Y. Sup. Ct. | 1839
By the Court,
It is clear upon principle, and not without authority, (vide Van Wart v. Woolley, 3 Barn. & Cress. 439; 5 Dowl. & Ry. 374; 5 Maule &. Sel. 62; and 1 Barn. & Cres. 10,) that if the plaintiff sustains no loss, or need not sustain any with ordinary attention to the case, notwithstanding a defective notice of protest, the notary is not liable to him; and if he is fully advised of a ground of sustaining the action against an endorser independently of the notice, and wilfully or negligently omits to to avail himself of it, he cannot subsequently sustain an action against the notary. But this ground of supporting the action against the endorser should be not only well taken, but well known to the plaintiff; and it seems to me also that he should have some intimation that the notice would be questioned, so that he might come prepared to resort to the other aspect of ti: case. In the absence of such intimation, he might, I think, put himselt upon the simple ground of notice, assuming that the officer had done his duty. In this respect, 1 am inclined to think the case was more favorably for the defendant submitted to the jury than can be upheld by the strict principles of law.
Judgment affirmed.
