Peter Vivian Daniel

“ Banks, universally, are collecting agents; they always give notice of the time of payment, and of the amounts due, to the debtors whose notes are left with them for collection. It is an injury to a man's credit, and not unfrequently destroys his business character, not to provide the means of paying a note left with a bank for collection, and of which he has been notified. These reasons must have operated with plaintiff in error in inducing him to require the note to be sent to the bank for collection. Calhoun, as appears from the record, lived in the town where the Columbus Bank was situated ”

“ Due diligence can be required only because diligence may find and seize property to pay the claim-and where there is insolvency due diligence has no object, or rather consists, at the utmost stretch of obligation, in having a return on execution of nulla bona. This return is in fact only a test, or a form of proof, of insolvency. Substantiated otherwise, the duty of diligence has as truly been fulfilled by simply recovering judgment, and by issuing execution upon it. Here insolvency is proved, and judicial ascertainment was not requisite. ”

“ Another suit is prescribed to us here, and to be in Texas-and that for the vain chase of an insolvent man! Not more than one suit for the exercise of diligence, wherever imposed, is required. Any other view might multiply suits through an interminable series, and all recourse to an original party, dependent on eventual and long-deferred tests of insolvency, would prove but a shadow of a right, and a mere mockery.
The last objection needs scarcely a comment, that the set-off of about $1,500 should not be allowed. ”

“ Each deposition must be perfect in itself.
If the depositions are excluded, there is no evidence whatever of any diligence. If the deposition of T. B. Winston, the acting notary public, is excluded, there is no testimony to show that the note was even presented for non-payment at the Columbus Bank. This being required by the contract, the other testimony would not be sufficient to support the judgment. But the fact of permitting one improperly taken deposition to be read to the jury is sufficient to reverse the judgment. ”

“ These provisions are innovations on the common law, and were evidently intended to create a new practice in pleadings, trials, and rendering up judgments. If it is not so, then the set-off of the maker of the note, Calhoun, against the second endorser, Tarpley, was all wrong, and there was a total want of diligence in defendant in error, in not taking the case to the appellate court and having it there decided, and in permitting the case to be continued for three years, for an improper defence in the Circuit Court. ”

“ DOREMUS, SUYDAMS NIXON, New York:
'GENTS:-Your favor of the 11th inst. is received, and contents noted. It is quite out of our power to send you any New Orleans bills for your note on E. F. Calhoun. We trust you will before long receive a judgment for the entire debt, interest and cost, and that you will find by the virtue of an execution that 'insolvency has not passed upon them all.' Those who have gone to Texas may yet make a great rise in that fine country. We regret that the note has been so difficult of collection. We scarcely know which, you or we, made the worst trade ”

“ They should, therefore, have been excluded from the jury.
3d Objection. The deposition of Thos. B. Winston should have been excluded, because he was not sworn to testify 'the whole truth.' He was sworn 'to testify the truth, and nothing else but the truth.' Now, the 30th section of the act of 1789, authorizing the taking of these depositions, expressly provides that 'the witness is to be carefully examined, and cautioned, and sworn, or affirmed, to testify the whole truth.' This was not done, and the deposition, therefore, should have been excluded. ”

“ It is true the pleas, which are most carelessly drawn, use the words 'the said defendants say,' &c.; but nowhere does it appear that they authorized an appearance; and the whole defence is conducted by the attorneys for Calhoun. It is manifestly improper that this lose mode of pleading in the name of defendants, by Calhoun's attorney, should be construed into an appearance and defence for the endorsers; for the whole of Calhoun's defence consisted of a set-off against Tarpley; and their interests in this suit were directly conflicting. ”

“ And for aught that the record discloses, every requirement of the law merchant, with respect to the note, or with respect to the rights of the endorsers thereof, appears to have been fulfilled. Presentment at maturity and within due time was made at the Bank of Columbus, Mississippi, and payment there demanded; the failure to make payment was followed by regular protest, and by like notice to all the endorsers. ”