Walker v. Walker, 7 Ark. 542 (1847)

Jan. 1847 · Arkansas Supreme Court

7 Ark. 542

Walker & Faulkner vs. Walker.

When a judgment is reversed by this court, on a writ of error, and.remanded for further proceedings, and a writ of error is again sued to a subsequent judgment in the same cause, nothing is before the court' on the second writ of error, but the proceedings of the circuit court subsequent to the mandate, and no previous irregularity c’an be assigned for error — and so even though one writ of error is sued by one party and the other by another.

Although improper or irrelevant testimony is admitted by the circuit court, yet if theie is other sufficient evidence, that error will not be sufficient cause for the reversal of the judgment.

If by prior arrangment botween any of the parties to a bill, the necessity of notice has been expressly or impliedly dispensed with, as between these parties, no notice need be given and the want of it is entirely excused ; for'here the maxim strictly applies quilibei potest renunciare, juris pro se introducto.

Where the second endorser before the bill matures receives an indemnity from the first endorser, amply sufficient at the time, it is taken to cover his liability, the necessity of proof of demand and notice as to such second endorser is dispensed with.

A subsequent promise to pay by a party entitled to notice of the non-payment of a bill, will amount to a waiver of demand or notice provided the promise is made clearly a'nd unequivocally an'd with'.a full knowledge of the fact of a want ’of due diligence on the part of the holder.

Where after a bill is protested, an endorser sends word to the holder “that the bill has been protested and sent back, that he does not wish suit brought on it, but that he would make arragements to pay it,” such promise to pay is presumptive evidence of due demand and notice.

It appeared from the evidence that F., one of the endorsers, rented a house in Little Rock in March 1839, for one year aud resided there with his family until the fall of that year, and was frequently there during the following winter — that he had kept and paid rent for a box in the post-office at that place ever since March 1839, where he received when there all communications addressed to him by mail, and that such communications when he was not in Little Rock were forwarded to him by his request — held not only that the circuit court did not err in instructing the jury that they might infer from these circumstances that the subsequent promise made by such endorser, was made with knowledge of the facts attending the protest and notice ; but that the court could well have instructed that these facts, if proven, were sufficient to charge him in absence of any subsequent promise, in case notice was in due time addressed to him at Little Rock.

The holder of a protested bill, drawn or negotiated in this state, expressed to be for value received, and drawn upon any person and payable in Louisiana is entitled to damages at the rate of four per centum on the principal sum in such bill, together with interest at the rate of ten per centum per annum on the amount specified in the bill from the date of protest until paid.

The holder of a bill of exchange is entitled to bring his joint action against all, or as many of the parties liable thereon as he may think proper.

Writ of Error to the Circuit Court of Pulaski County.

This was an action of assumpsit, by John W. Walker against Samuel D. Walker and Faulkner in the Pulaski circuit .court, determined before the Hon. John J. Ciendenin, judge, and founded upon a bill of exchange drawn by one Moss on, and accepted by one Standifer, dated 17th June 1839, payable at Canal Rank, New Orleans, at six months from date, in favor of Faulkner, and endorsed by him and by Samuel D. Walker.

The facts in relation to the proceedings had and steps taken in the cause previous to the last trial in the circuit court are sufficiently stated in the opinion of the court. On the last trial the plaintiff below read the bill sued on and the pi'otest thereof and also the deposition of Christy the Not. Pub. who proved that the bill was protested by him on the 20th of Dec. 1839, and that on the same-day he addressed written notices of protest to the drawer and endorsers of said bill, directing said notices to them respectively at Cincinnati, Ohio, and also duplicate notices to said parties respectively directed to them at Little Rock, which notices and duplicates were deposited in the Post-office in New Orleans on the day of the protest. Whitfield, a witness on part of the plaintiff, stated that the bill sued on was offered to him for sale in the summer of 1839 and that he refused to purchase it unless it was well endorsed; it was shortly after presented to him with the endorsements of Faulkner and Walker the defendants, who were then in Little Rock, and he bought it — the bill was negotiated in this state — some time before it matured he sold it to the plaintiff. After the bill had been protested, Dr. Holly came to witness and told him Faulkner requested him to tell Walker the plaintiff that the draft had been protested for non-payment and sent back and that he did not wish suit to be brought on it, that he would be up to Little Rock and make arrangements to pay it, which witness told Walker ;■ shortly after' this Faulkner came to witness and told him that he had sent Dr. Holly to him and that he hoped suit would not be brought and that he would pay the bill, and requested witness to go to the plaintiff and get him not to bring suit, that he would pay the money, and witness did so — Faulkner spent the summers in Little Rock, but resides on his plantation in Chicot and usually left Little Rock ■early in the fall; at the time of the maturity of the bill Faulkner and A. H. Sevier were good for $4000. 11 was also proved by ■other witnesses that Faulkner resided on his plantation but usually spent his summers in Little Rock, that in the spring of 1839 he brought his family to Little Rock, rented a house there for a year and resided therein with his family until in September or October, when he returned to Chicot county, that in the spring of that year he took a box in the Post-office at Little Rock and has kept it ever since, where he receives all communications addressed to him by mail, and that such communications when he was not in Little Rock were by his request sent to him by mail at Columbia, Chicot county; that he had spent his summers in Little Rock with his family ever since 1839, and was frequently there during the fall and winter seasons.

The plaintiff then read the answer of the defendant Samuel D; Walker filed on the 13th day of May 1843, to a petition for discovery exhibited in the cause, in which he denied that he had received any notice of the protest of the bill and stated that “he received from Faulkner and Sevier notes to the amount of $3800 as indemnity to him in his said endorsement,” and that “if he had received notice of the protest aforesaid, he might and would if he had been enabled to do so, have made the notes given to him as aforesaid available to him as an indemnity, but not having received any notice of the protest and believing himself exempted from all responsibility on account of said endorsement he neglected to take any steps ill prosecution of said notes, and did not believe that said notes Could then be made available.”

The plaintiff read the statement of Lee taken by agreement* to which the defendants objected, upon the ground that it was incompetent as evidence, but the court overruled the objection and they excepted. The substance of this evidence is stated in the opinion of the court.

After the evidence was closed the circuit court on motion of the plaintiff’s Counsel instructed the jury:

1st, That if the jury believed from the evidence that Samuel ÍL Walker received the notes of Faulkner and Sevier to the amount of $3800 as an indemnity to him in his endorsement of the bill suéd on, and that they weie at that time good as a méans of indemnity to him, he thereby waived his right to-notice Of the dishonor of the bill, and the jury were bound to find for the plaintiff notwithstanding they might believe from the evidence that such indemnity afterwards became doubtful as a means of security.

2d, That if the jury believed from the evidence that said Samuel D. Walker received such indemnity he was bound by law to look to that indemnity and attend to the collection of the notes in question placed in his hands as a means of indemnity whether he had received notice of the protest of the bill or not.

3d, That if the jury believed from the evidence that Faulkner promised the plaintiff to pay the bill sued on after it was dishonored they might infer that he made such promise with a knowledge of the facts attending the protest and notice thereof, and unless such inference or presumption was rebutted by other testimony, the plaintiff was entitled to recover against him without proving that he had notice of the protest and non-payment of the bill.

4th, That if the jury believed from the evidence that said Faulkner rented a house in Little Rock in March 1839 for one year and resided there with his family until the fall of that year, and was frequently there during the following winter — that he had kept a box in the Post-office at Little Rock ever since March 1839, where he received all communications addressed to him by mail, and that such communications, when he was not in Little Rock, were by his request, forwarded to him by mail at Columbia, those were circumstances from which the jury might infer that he promised to pay the bill with knowledge of the facts attending such protest and notice.

5th, That if the jury should find the issue for the plaintiff, and also believe from the evidence that the bill sued on was endorsed or negotiated in this State payable in Louisiana, the measure of the damages sustained by reason of the premises was by, law, the amount of the bill and 4 per cent thereon, damages, with interest on -the amount of the bill at ten per cent per annum from the date of the protest. To all which the defendants excepted. The defendants then moved the court to instruct the jury that the plaintiff to charge the defendants with the payment of the bill must prove: “1st,, due service of notice of protest of the bill of exchange fpr non-payment; 2d, an unconditional promise to pay the same after protest by said defendants or either of them; 3d, that said Walker was originally •looked to for the payment of the bill and knew that it would not be paid by the other parties; and that the notes of Faulkner and Sevier were given to him as means with which to pay the same, and not as an indemnity to him as endorser.” The 3d of which instructions the court refused to give, and they excepted. The defendants also excepted to certain other decisions, the facts in relation to which, are sufficiently stated in the opinion of the court. After the verdict was returned the defendants filed their motion in arrest of the judgment, upon the grounds: “ 1st, that the cause of action in the declaration set forth was not for the ‘amount of the bill’ together with all damages, interest and costs that might have accrued thereon according to the statute giving the joint remedy against the drawer, endorser and acceptor or either of them; “2d, that the statute did not give a joint action against the separate endorsers alone;” “ 3d, that the judgment was not warranted by the pleadings in the cause;” and “4th, that the declaration was insufficient in law;” which motion was overruled — and they then filed a bill of exceptions setting out all the testimony, and presenting the exceptions taken by them at the trial and brought error.

The declaration is drawn in accordance with the usual common law precedent.

Ringo & Trapnam,, for plaintiffs in error.

The judgment in favor of Walker separated him from the cause; that judgment could have been affected in two ways: 1st,by a motion for a new trial by the plaintiff, which he did not make and thereby impliedly gave his sanction to it — secondly, by a motion by Faulkner in arrest of judgment, according to the decision of this court in the cases of Frazier vs. The State Bank, 4 Ark. 509. Beebe vs. R. E. Bank, id. 546; but he preferred to rest the case on its merits and therefore made a separate motion for a new trial which was sustained by the court. The plaintiff and co-defendant Faulkner were the only persons who could complain of the judgment in favor of Walker, and they having waived all objection to it, it became irrevocable and the case would naturally proceed in the name of Walker vs. Faulkner. The court should therefore have stricken Walker’s name from the cause, unless it be adjudged that the continuance of his name, and the part he subsequently took, amount in law to a reappearance. In that event, he certainly could not be precluded from relying on the former judgment for him, as matter in bar, in bis defence, and a former recovery in actions of assumpsit and ejectment under the general issue. 1 Chitty 513, note I. Young vs. Black, 7 Cranch 565. 2 Strange 733. In all other actions it should be pleaded. 2 Harris £f Gill 173. The difference is that when plead it amounts to an estoppel. 6 Wendell 284. Nor was it necessary contended by the defendants in error that this should have been set forth in a plea puis darrein continuance: 1st, because it belonged to the record before the court, whereas such a plea always sets up matter dehors, as bankruptcy, release, payment &c. 1 Chitty 696. 15 East 622. 7 Taunton 421. 4 Mon. 192. 4 Barn, Cress, 92Ü. 6 Barn, Cress, 105. 2d, Because it happened before Walker’s re-appearance: 3d, because it could be given in evidence under the general issue already formed.

The evidence of Lee was utterly inadmissible; it contained nothing but expressions of anxiety, by Faulkner, about the payment of the bill before it fell due — whereas if he is liable in this action it would only be by protest and due notice, after the maturity of the bill, or a subsequent promise to pay with a full knowledge of all the facts, Chitty on Bills, 471-2. Story on Bills. 3 Kent 113.

Walker received no notice of the non-payment and protest of the bill, por was any sent to him, and so important in commercial law is the due notice of protest to an endorser, that death, bankruptcy, potorious insolvency, or the notorious stoppage of payment by a banker do not excuse the want of it. Chitty on Bills. 13 Mass. 558. Jackson vs. Richard, 2 Cain 243. 10 East 84. Neither does the receiving notes as indemnity. Clegg vs. Cotton, 3 Bos. Sp Pull. 243. Baker vs. Birch, 3 Compt. 107. 9 La. R. 335.

But if there be only three parties to a bill, drawer, endorser and payee, and the endorser takes from the drawer of the bill or maker pf tjie note, an assignment of all of his effects for the express pur? pose of paying the bill, and thereby makes a demand on the drawer •‘fruitless,5 and becoming himself the real debtor, then a notice to him is ‘useless.5 Corney vs. Da Costa, 1 Esp. 302. Brown vs. Maffey, 15 East 222. Bond vs. Farnham, 5 Mass. 170. Mead vs. Small, 2 Greenl. 163. Barton vs. Baker, 1 Se >-g Sf Rawle 334. Story on Bills, sec. 316. Mech. Bank vs. Griswood, 7 Wend. 168. IAffingwell vs. White, 1 John. Cases 99. Chitty on Bills 473. Prentiss vs. Danielson, 5 Conn. 175. Smith vs. Becket, 13 East 188. Watt vs. Mitchell, 6 Howard contra, Kent 3 Yol. 79, makes reference to the above cases. In this case there were various (Other parties to the bill — there were the drawer and acceptor who were primarily liable for the payment of the bill, and there was no •proof of their inability, and it was proven that Faulkner was amply •able to meet the bill. It is therefore clear that Walkner never contemplated the payment of the bill, and never was looked to for its. payment, and the indemnity was given to him not by a party primarily liable but by an endorser, and a demand in this case would not have been fruitless, and a notice to Walker was important to him as he has shown - in his answer, and would not have been ‘fruitless.’

The remedy given by the statute in this case is peculiar, being a joint action on several liabilities, a singular innovation on common law principles, and therefore strictly to be pursued. It is given against all, drawer, acceptor and endorsers, and the omission of one is fatal. Cressonvs. Williamson,1 Marsh 455. Farmer Sf Merch. Bank vs. Turner, 2 Litiell 17. It is not like the remedy at common law upon a joint and several contract in which the omission of a co-obligor is matter, merely in abatement — but the joining together, in this case, relates not to the contract but the remedy, and if all are not joined, it is not the action given by the statute, and the declaration then shows several defendants bound by separate. liabilities united in the same action, and therefore a matter in arrest, of judgment.

The 64th section of the statute on the practice at law, has no reference to this case; it evidently relates to torts or a joint and .several contract, and not to a case where there are several defendants, bound by separate contracts and a joint remedy given against all; and therefore the two acts are in pari materia. But if they relate to the same subject matter, one is a general and the other is a special law and though in conflict may stand together. McFarland vs. The State Bank, 4 Ark. It. 410. If there is a conflict the latter repeals the former. Rev. St. p. 697.

Watkins & Cursan, contra.

As regards. Walker’s discharge by virtue of the first verdict in his favor we submit: 1st, that it was no verdict at all — the legal effect of the proceedings in discharging the jury, being the same as if there had been a mis-trial. The verdict found two facts utterly repugnant and irreconcilable. In Steans vs. Barnett, 1 Mason's Ct. Cl. Rep. 153, it was held that an inconsistent verdict is absolutely void and cannot be the foundation of any judgment ;^and so in Patterson vs. U. S. 4 Cond. R. 98. The only course which could possibly be pursued by the court after receiving such a verdict was to award a venire de novo; 2d, even if the verdict was not a nullity, and could have been received by the court, the legal operation of it was the same as if it had been a general finding in favor of both defendants. This is a joint action ex con-tractu, in which the plaintiff must succeed against all or none — a discontinuance as to one or a finding in favor of one would discharge all. Beebe et al. vs. R. E. Bank, 4 Ark. Rep. Ashley vs. Hyde 4' Goodrich, 1 Eng. 92. 3d, The entry on the record shows that a new trial was granted of the whole case. The legal effect of the grant of a new trial to set aside the verdict and awrard a venire de novo — a verdict in actions ex contractu, is an entire thing, no principle of law is better settled than that a new trial cannot be granted as to portion of a case, or one of several defendants. 2 Tidd's Prac.p. 816, and cases cited. Buller N. P. p. 326. Grayham’s Prac. If then the court could not grant a new trial as to one, would not the presumption be that a new trial of the whole case was granted, more especially when the language is ‘granted a new trial in this case.’ What easel Walker was as much a party to the case as Faulkner was at the time the order was made, otherwise it w’ould be impossible to obtain a new trial where a verdict was returned in favor of a defendant. Because the record shows a motion by Faulkner, it does not exclude the conclusion that another motion was made. To rely upon the fact that Faulkner made the motion, is to determine the question not by the order of the court, but by the motion of the party. A court has the power to grant a new trial without a motion — if a new trial should be granted against the objection of both parties, it might be erroneous, and be an abuse, but could not be said to be such an usurpation of power on the part of the court as would render the order void. 4th, If this objection ever could have been available, Walker by his subsequent acts in continuing to appear, answering the petition for discovery, joining in error in the supreme court, &c. has waived it. Robins vs. Fowler, 2 Ark. R. 147. 5th, No errors are now before this court for adjudication on this writ of error, except such as have intervened since it was remanded to the circuit court. The 16th rule of this court provides that a second writ of error in the same case can only be brought for the correction of such errors as have accrued after its return. In Fortenberry vs. Frazier et al. 5 Ark. R. 200, the court said that “ after a case has been decided by the supreme court, and remanded to the inferior court, and is again brought before the supreme court, nothing is before the court for adjudication but the proceedings subsequent to the mandate.” This principal is fully sustained by a number of cases decided by the supreme court of the United States. Skiller’s Ex. vs. May’s Ex. 2 Pet. Cond. R. 366. Ex-parte Silbdld vs. The United States, 12 Pet. R. 488. Ex-parte Story, id. 339. Hirnely vs. Rose, 2 Pet. Cond. R. 260. The Santa Maria, 6 Pet. Cond. R. 176. Boyces’ Ex. vs. Grundy, 9 Pet. R. 290. This rule applies with equal force, even though the judgmentreversed should afterwards be discovered to have been rendered without jurisdiction and be absolutely void. Fortenberry vs. Frazier etal., Skiller's Ex. vs. May’s Ex. ubi. sup. Consequently the decision upon the first writ of error is the law of the case, and all parties are now forever precluded from raising any objection previously existing; and 7th, Walker could only have rendered this defence availble by special plea to the further maintenance of the action, the matter having arisen after issue joined must haved been pleaded puis darrein. 1 Chit. PI. 695. 4 East 507. 20 J. R. 414. 6 Bowl. <$■ Ryl. 475. 7 J. R. 194. 5 J. 7?, 392. 9 J. II. 221. 5 Peter’s 232. fíWtfí P¿. 124. This defence could not be given in evidence under non-assumpsit. 1 Chit. PL 513.

By moving in arrest the plaintiffs in error waived their exceptions to, and cannot now take advantage of the ruling of the court at the trial. Hanley vs. Robins’ heirs, 3 Ark. R. 144. Cunningham et al. vs. Bell et al. 5 Mason’s C. C. Rep. 173. Corlies vs. Cummins, 5 Cowen 415. 1 John. R. 192. Wilson vs. Fowler, 3 Ark. R. 463.

A motion in arrest ad mits that the party is satisfied with the1 correctness of the verdict. Bedford’s ad’r vs. Ingram, 5 Hayio. Term. R. 160. 2 Tenn. R. 240. Our statute prohibits a party from moving for a new trial after a motion in arrest. Rev. Stat. p. 636, sec. 123. But if he can move in arrest and then bring error and have the benefit of the exceptions taken' at the trial, as is attempted in this case, the result is the same as if the party had moved for a new trial — and the statute would be by that means evaded. It was not necessary for the plaintiff to aver that he'was within the statute giving damages, interest, &c. it was sufficient for him to state the facts, requisite, and leave the conclusions of law to be drawn by the court; but even if this was a defect it is such an one as would be cured by verdict.

The non-joinder of a defendant must be pleaded in abatements and cannot be taken advantage of by motion in arrest, even though it appears upon the face of the declaration that there are other' joint contractors. Tilman vs. Rives, 10 Peters 298. Hamilton vs. Buxton, 1 Eng. R. Williams vs. Allen, I Cowen 316. 1 Saund.-R. p. 291, b. n. 4. Sewall vs. Allen, 6 Wend. 348. 1 Ch. PI. 52. 0 Cowen 44. 2 Johns. Cas. 383. Rice vs. Shute, S Burr. 2611.-Robertson vs. Smith, 18 J. R. 459. Moore’s Ex. vs. Russell, 2 Bib. 443. Allen vs. Luckett, 3 J. J. Marsh. 166. But the non-jóinder' could not have been taken advantage of at any stage- — the case is-within sec. 64, Rev. Stat. ch. 116. This was virtually decided in Beebe vs. R. E. Bank, 4 Ark. R. 546. That statute was passed after the one in relation to actions on bills, and consequently extends to this kind of action.

The subsequent promise by Faulkner was a waiver of proof of demand and notice, and the circumstances attending the transaction are such as to authorize the conclusion that he made the promise with knowledge of the facts. 16 Law Lib. 172. Gibbon vs. Cog-gon, 2 Camp. R. 188. Lundie vs. Robertson, 7 East 232. Butler’s N. Rep. 276. 6 East 16. 1 Leigh's N. P. 456. Breed vs. Hill-house, 7 Comen 523. Kipplinger vs. Griffith, 2 Gill 4- Johns. R. 296. 8 Pick. R. 1. 3 Kent's Comm. 113; Walker vs. Laverty <§• Gantley, 6 Munf. R. 487. Independent of the promise, the proof of the diligence used in giving Faulkner notice is sufficient to charge him.

Where an endorser receives an assignment of property or other security, as an indemnity against loss by reason of his liability, he thereby waives the necessity of notice, his conditional undertaking to pay the bill thereby becomes absolute and unconditional, and the holder can recover against him without proof of demand and notice. 3 Kent’s Comm. 114. Barton vs. Baker, 1 Berg. Sf Rawl. 334. Watt vs. Mitchelll, 6 Howard's (Miss.) Rep. 131. Bond vs. Farnham, 5 Mass. Rep. 170. Meed vs. Small, 2 Greenl. Rep. 207. Meclu Bank vs. Griswood, 7 Wend. R. 165. Andrews vs. Boyd, 3 Met-calf R. 434. Prentice vs. Donielson, 5 Conn. R. 175.

This rule is not'as contended by the counsel on the other side,confined to cases, where there is an assignment of all the property# or where the endorser upon receiving the indemnity agrees tobecome the real debtor, or where there are but three parties to the bills True some of the cases cited were of that kind, but it does not therefore follow that the rule has not a more extensive application ; nor does the rule rest upon the principle that insolvency excuses notice. Chanel. Kent, 3 Kent’s Comm. 114, upon a review of all the cases upon the subject, conclusively answers every objection urged against the application of the rule to this case — he lays down the principle, as deduced from the adjudications, without any such qualifications, restrictions, limitations or conditions. It is enough in this case that the indemnity was sufficient at the time it was received. The reason of the law for requiring notice to an endorser is, to enable him to take steps to secure himself against loss, and therefore where, before the bill or note matures, he indemnifies himself, upon the maxim that when the reason for the rule of law does not exist, the rule ought not to be applied, he is not entitled to notice.

Oldham, J.

We will proceed to the consideration and determination of the various questions made in this case, in the order in which they appear of record.

At the -September term 1841 this cause was tried in the circuit' court, when the jury returned a verdict against the defendant, Faulkner, and in favor of the defendant, Walker. Faulkner moved for a new trial and the court “sustained, the motion and granted a new trial in the case.” The cause was then continued, and in all the subsequent entries, it is entitled against both defendants, but the record does not show any substantive act performed by the defendant, Walker, by which it is made to appear, manifestly, that he was or was not considered to be still in and before the court. On the 25th January, 1842, the cause was again submitted to a jury, and a verdict was returned for the defendants,' and the court thereupon adjudged “that said Sandford C. Faulkner and Samuel D. Walker go hence” &c. The plaintiff, Walker, prosecuted his writ of error against both the defendants, who joined in error in this court, and at the July term, 1844, this court reversed the judgment and remanded the cause for further proceedings. (See Walker vs. Walker, 5 Ark. Rep. 643.) At the first term after the cause was remanded to the circuit court, the defendant, Walker, filed his motion “ to have his name stricken from the case” on the ground “that at the September term 1841 ” of said circuit court “ on the trial of the issue joined in said cause, a judgment was rendered in favor of said defendant and against said plaintiff which said judgment is in full force” &c. The motion was overruled and he excepted. Upon the trial anew the defendant offered to read to the jury the aforesaid “ verdict of the jury in his favor and the judgment of the court and the motion of Faulkner for a new trial and the order of the court on the motion” which being excluded by the court he excepted.

These decisions of the court were correct and proper. Whether the judgment rendered in favor of Walker upon the first trial was set aside upon the motion of Faulkner for a new trial, is a wholly immaterial question, and the correctness of the action of the circuit ■court upon the point subsequent to the mandate of this court cannot, as seems to be supposed by the counsel, be determined by that inquiry. If that judgment was set aside, and a new trial granted as to Walker as well as Faulkner, the motions made to the circuit court were unsustained by the facts upon the record, and were properly overruled. But allowing the fact to be, as insisted upon by the plaintiffs in error, that said judgment was set aside upon the motion of Faulkner, that no new trial was granted as to the defendant, Walker, and that he was wholly unaffected by the subsequent proceedings of the court, the plaintiff below sued out his writ of error against both defendants, brought the whole record into this court, and upon the errors assigned this court reversed the judgment of the court below as to both defendants. The defendant Walker was a party to the writ of error and was subject to the proceedings had in this court, and consequently, if the first verdict and judgment rendered in his favor in the circuit court until then remained in full force and effect, it was brought into this court by writ of error, and by its judgment and decision was reversed and set aside. And so if the first judgment was set aside upon the motion of Faulkner for a new trial, the like consequences attach to the final judgment of the court in favor of both parties. If the first verdict and judgment in favor of Walker was not set aside, but remained in full force, the subsequent action of the circuit court, so far as it affected him, was void, and the last verdict and judgment in favor of both parties did not confirm or prejudice his rights, and whether the first or last judgment in his favor was a valid judgment is wholly immaterial. It was a valid judgment in his favor and not a void one that was reversed. We cannot now determine which judgment this court took into consideration as a valid judgment nor inquire into the propriety of the reasons given for reversing it. As the former writ of error sued out in this case brought the whole record before the court, and the judgment as to both defendants was reversed and the cause remanded for further proceedings, nothing is now before us but the proceedings of the circuit court subsequent to the mandate.

The next error assigned is that the court admitted the evidence of Lee. This evidence consisted of a deposition informally and irregularly taken; but these objections were waived and its admissibility opposed “ on the ground that it was incompetent as evidence.” This deposition detailed a conversation between the witness and defendant Faulker in November 1839 in relation to a bill pf exchange upon which the suit was brought. The witness states that “ in November 1839, he was talking with Faulkner about the draft. Faulkner told him that it was right, that the draft would be paid, told him to say so to John W. Walker, which witness did. Faulkner in amount acknowledged his responsibility for the payment of the draft and desired him to let Walker know what he said.” This was a mere admission of responsibility for the payment of the draft before it became due, amounts to no more than the endorsement itself, and is an acknowledgment of liability for the payment of the bill provided the holder uses due diligence in making demand of payment of the acceptor and giving the requisite legal notice to the endorser in order to fix his liability. Such an admission is not evidence to prove either demand and notice, or a waiver of them, as it was made before the bill matured. Had the admission been made after the maturity of the bill it might properly have gone to the jury as a circumstance tending to show a waiver of demand and notice. But even in that case the deposition should have been read subject to this qualification by the court. The witness, after stating what Faulkner did say, then says “ Faulkner in amount acknowledged his responsibility for the payment of the draft.” This was an inference drawn by the witness from the statements of Faulkner. He should have confined himself to what he did say and left it to the jury to draw the inference. A witness should state facts,- it is the province of a jury to draw inferences from the facts. Although the deposition of Lee should not have been read, yet if there was sufficient evidence to establish the liability of Faulkner exclusive of that deposition, that error will not be a sufficient cause for the reversal of the judgment.

The next error assigned is that the court, gave the instructions asked by the plaintiffs below.

The first two instructions given relate to the indemnity received by the defendant, Walker, and his liability without demand and notice. The correctness of these instructions, we will first examine. Judge Story in his Com. on Bills of Exchange, 359, says, “There are other cases in which an endorser would not be entitled to strict notice. As, for example, if he is a mere accommodation endorser, and at the time of his endorsement he has received funds of the drawer to pay the bill and secure him an ample indemnity, he will not be permitted to object, that he has not received due notice of the dishonor of the bill, for in such case he cannot complain of any loss or injury from want of notice since he has funds in his own hands to meet the payment. If he has received funds from the drawer for a part payment only, he will still be entitled, to strict notice, but at the same time, although no such notice has been given, the holder will be entitled to the funds. It follows, a fortiori, that if by prior arrangements between any of the parties, the necessity of notice has been expressly or impliedly dispensed with, as between these parties, no notice need be given, and the want of it is entirely excused; for here the maxim strictly applies. duilibet potest renunciare juri pro se introducto. The same doctrine, founded upon the same general principle, pervades the French law, and, indeed, it is so reasonable that it should seem to be founded in the very elements of universal jurisprudence.” Chancellor Kent, 3 Com. 114, thus lays down the rule. “ So if the indorser has protected himself from loss, by taking collateral security of the maker of the note, or an assignment of his property, it is a waiver of his legal right to require proof of demand and notice.”

It is contended by the plaintiffs in error that this rule extends only to cases “ where there are but three parties, the drawer, in-dorser and payee, and the endorser takes from the drawer an assignment of his effects for the express purpose of paying the bill, and thereby making a demand on the drawer fruitless, and becoming himself the real debtor.” We have taken some pains to look into the reported cases to see if this position is correct. We find that many of the cases do not go further, because the facts involved in them did not require a more extensive application of the rule. In Corney vs. DaCasta, 1 Esp. Rep. 302, the makers in compounding with their creditors gave notes, which were endorsed by the defendant, who under an arrangement at the time, took effects of the insolvents to the amount of the composition, Buller J¡ said, the defendant made himself liable at all events, the creditors insisted upon it, he was therefore solely liable and being so could not avail himself of want of notice. In Bond vs. Farnham, 5 Mass. Rep. 170, the maker assigned all his property to the endorser for his security against his endorsements, and it was held that demand and notice were thereby waived. The assignment covered all the property of the maker, which was not sufficient to meet all the endorsements. Barton vs. Baker 1 Serg. & Rawle 334, is to the same extent. See also Mechanic's' Bank vs. Griswold, 7 Wend. Rep. 165. In Mead vs. Small, 2 Greenleaf’s Rep. 207, the endorser took a mortgage upon the real estate of the maker of the note as collateral and sufficient security for the amount, and the court held that he was not entitled to demand and notice, but said “ if the endorser has protected himself from eventual loss by his own act in taking security from the maker, such conduct must be considered as a waiver of the legal right to require proof of demand and notice. In Dunham vs. Price, 5 Yerg. Rep. 300, the maker of the‘note placed in the hands of the endorser a sufficient amount of property to indemnify him against his endorsement, the court held that the taking of such security dispensed with the necessity of proof of notice. In Watt vs. Mitchell, 6 Howard's (Miss) Rep. 131, an accommodation endorser took a mortgage from the maker of the note as an indemnity, but subsequently released a large portion of the mortgaged estate, the court in their opinion said “ the question is whether an endorser, who obtains indemnity for his endorsement from his principal does not thereby dispense with notice of demand and refusal to pay. We think he does, and especially under the circumstances of this case. Here the endorsers obtained a formal mortgage of a very large amount of property, and had the same recorded as an indemnity against the several undertakings and liabilities, and that they actually and of their own accord released to their principal a large portion of the mortgaged estate, without any agency or consent of the holder of this note; and if the property remaining in their hands proved! insufficient to indemnify them it was their own fault, and not' binding on the holder of the paper.” These cases fully establish the principle that if the endorser take a sufficient security from the maker to indemnify him against his endorsement it will dispense with proof of demand and notice of non-payment.

But it is insisted that the security in this case was from th’e first to the second endorser. The -same relation exists between them as between the drawer and the first endorser and the reason of the rule applies as readily to one case as the other. And in this view we are sustained by Judge Stohy, who after stating the .general rule as between the drawer and the endorser, continues, “ it follows, a fortiori, that if by prior arrangements between any of the parties, the necessity of notice has been expressly or impliedly dispensed with, as between these parties no notice need be given.”

Walker, one of the defendants below, received notes from Faulkner and Sevier to the amount of about $3800 as an indemnity to him against his endorsement. The amount was amply sufficient to cover his liability and it was proven, that the makers of those notes at the time of the maturity of the bill- were good for the- . amount. We are, consequently, of opinion that the facts proven dispense with the necessity of proof of demand and notice as toJ Walker, and that the instructions of the court below upon that-point were correct.

The instruction asked by the defendants below upon this point was an instruction as to facts, not of law, and was contradicted by Walker’s own statement.

The third instruction asked -was properly given. Chancellor Kent, 3 Com. 113, says “a subsequent promise to pay by a party entitled to notice will amount to a waiver of the want of demand or notice, provided the promise was made clearly and unequivocally, and with a full knowledge of the fact of a want of due diligence on the part of the holder.” Hopes vs. Alder, 6 East. 16,was an action against the drawer to whom no notice of non-payment had been given. It was proved that upon a meeting, some time after and before the action, brought between the plaintiff and defendant, the latter said “I will see it paid.” Lord Kenyon*C.- J., said “ this subsequent promise was decisive.” And so, in the case of Lundie vs. Robertson, 7 East. 231, which was a suit by an endorsee against the endorser and no evidence of presentment or notice, but it was proven that being called upon by the plaintiff’s clerk some months after the bill was due, the defendant said “he had not the cash by him, but if the clerk would call in a day or two and bring the account (meaning the expenses) he would pay it.” The bill was shown to him at the time. On the second application he offered a bill on London for the debt and expenses, which was refused, he then said he had not had regular notice, but as the debt was justly due he would pay it.- Chambee,-J.-, thought this sufficient. On a rule nisi for a new trial and cause shown Lord Em.enborotjgh said “ the case admits of no doubt; it was to be presumed prima facie from the promise to pay that the bill had been presented in time, that due notice had been given; that no objection could be made to payment, and that every thing had been rightly done; and that -this superseded the necessity of the ordinary proof. There are numerous other cases to the point. Wood vs. Brown, 1 Stark. R. 217. Rogers vs. Stephens, 2 Term. R. 713. Anson vs. Bailey, Bul. N. P. 276 Pierson vs. Hooker, 3 J. C. R. 68. Hopkins vs. Liswell. Walket vs. Laverty, 6 Munf. 487. Norton vs. Lewis, 2 Conn. R. 478. Pate vs. McClure, 4 Rand. 164. This last was a 'case where the bill was returned protested, and the drawer, on payment being demanded, promised to pay it; it was held that he could not after-wards resist the payment on the ground that due notice of the' protest had not been given. And such is the case now before the court. Faulkner sent word to the plaintiff, Walker, “ that the bill had been protested for non-payment and sent back, that he did not wish suit to be brought on it, but that he would be up at Little Rock and make arrangements to pay it.” His promise to pay was presumptive evidence of due demand and notice. Breed vs. Hillhouse, 7 Conn. R. 523. Kepplinger vs. Griffiths, 2 Gill and John. 296.

There was no error in giving the fourth instruction. The court might even have gone so far as to have charged the jury that the facts stated in the instructions if proven (and they were proven) were sufficient to charge the defendant, Faulkner, in the absence of any subsequent promise to' pay the bill. Bank of Geneva vs. Howlett, 4 Wend. R. 32S. Bank of Utica vs. Philips, 3 Wend. R. 408.

The fifth instruction was also properly given. The law fixes' the rate of damages upon “ bills drawn or negotiated in this State,expressed to be for value received, and drawn upon any person and payable in Louisiana” &c., at the rate of “four per centum on the principal sum in such bill,” and the rate of “interest at ten per centum per annum on the amount specified on the bill from the date of protest until payment.” The instruction was in the language of the law itself.

The deposition of Lee already referred to could not by any possibility have influenced the verdict. There was sufficient legal evidence to establish fully and completely a right of recovery against the defendant Faulkner, to whom Lee’s deposition alone referred* and therefore the verdict cannot be disturbed, because the deposition was not properly admissible in evidence.

The motion in arrest of judgment is wholly Untenable upon the grounds contained in the motion. The 64th section of the 116 th chapter Rev. Stat. provides “'that every person, who may have a cause of action against several persons, and entitled by law to but one satisfaction therefor, may bring suit against all, or as many of them as he may think proper.” This section of the statute is not confined in its application to cases of torts as contended by the counsel for the plaintiffs in error, but is equally applicable to cases arising ex contractu where the plaintiff may have a cause of action against several and is entitled to but one satisfaction therefor. In the enactment of this section of the statute, the legislature certainly did not have in view a remedy alone for causes of action ex delicto, for such was the law before the passage of the act, but they had in view such cases as the one now before the court, in which by the common law or law merchant the plaintiff was bound to proceed against the drawer, acceptor and endorsers by separate actions as to each. The act was intended to make the remedy more simple,, complete and efficacious, and at the same time to save the necessity of a multiplicity of suits in relation to the same subject matter; and. therefore the plaintiff was authorized to bring his joint action against all or as many of them as he may think proper.

There is no such conflict between this section and the 10th section of the 20th chapter, Rev. Stat., and thel Ith chapter 9th section, as will prevent all from being operative at the same time. The. 10th section of the 20th chapter, Rev. Stat., gives to the holder of any bill of exchange protested for non-acceptance or non-payment &c. an action at law against the drawer and acceptor or either of them. The 9th section of the 11th chapter gives a joint and several action against all endorsers or assignors, with the original maker, obligor or payor of any instrument in writing assignable by law for the payment of money ,&c.” The first act gives a joint action against all or as many as the plaintiff may see proper to sue, while the last two acts give a right of action against all the parties liable or either of them. It is doubtful whether the language employed in the 10th section of chapter 20 can,by fair construction, be made to confer a joint action, and if it does, there is certainly no such conflict between the several acts upon the subject as will pi’event the operation of all of them.

We have not thought it necessary to determine whether the defendants below by moving in arrest of judgment abandoned their exceptions taken at the trial and upon the refusal of the court to grant a new trial. Judgment affirmed.

Petition for reconsideration: overruled, Conway B, J. dissenting.