Haines v. Tharp. taking issue upon it, and all the facts, as well as the law of the IN Bank. Dec. Term, case, are now before us for adjudication. 1846. It is insisted by the counsel for the defendant, that the proof of notice of the dishonor of the note is entirely insufficient to charge the indorser. This proof, therefore, must be examined. The protest speaks for itself, and shows the note was presented at the Franklin Bank on the 9th day of September, 1834, at the close of banking hours, and payment thereof demanded by the notary, which was refused. The deposition of this officer has been taken, and proves, that on the same day he made diligent inquiry for the indorser, but was unable to find him, and he therefore left notice of the protest under his door, on New street, east of Broadway, being informed that the indorser and his family were on a visit in the country. He does not recollect, definitely, the precise location of the said David Tharp's dwelling, but believes it was a few doors from the corner of Broadway and New street, and his impression is, it was at that time on the north side of New street. He was informed by some of the immediate neighbors of Tharp's absence in the country, and does not recollect whether he left the notice at the place from his own personal knowledge of his residence, or from information obtained in the vicinity, but in all such cases, he always made the most diligent inquiry. Another witness testified, that at the time of the date of the protest the residence of the indorser was on New street, four doors east of Broadway, on the south side. On this evidence, we are of the opinion the notice was left at the residence of the indorser. Suppose the notary had no knowledge of the location personally, with the diligence with which he swears he made inquiry in such cases, and in this case, either that he left the notice upon his own personal knowledge of the place or from information obtained in the immediate vicinity, the probability is, that he was not mistaken. He was certainly on the right street; this is proved by another witness, and, if so, it is more likely that his impression, after the lapse of so many years, is wrong, that the residence of the indorser Haines v. Tharp. IN BANK. was on the north instead of the south side of the street, than Dec. Term that he was misled by those in the immediate vicinity, who 1846. must have known and had no interest in deceiving him. The next question is raised on the issue taken by the replication to the special plea in bar. The cause of action in this case arose in 1834, and is controlled by the statute of 1831. Under this statute, actions founded on simple contracts, not in writing, are barred in six years; if in writing, they are barred in fifteen years. The defendant insists that the plea is sufficient, but that the replication is insufficient for the introduction of proof of a new promise within six years of the commencement of the suit. On such a question the authority of Chitty will not be denied, and he lays down the rule thus: "When the statute of limitation has been pleaded, either that the defendant did not undertake, or that the cause of action 'did not accrue within six years before the exhibiting of the 'plaintiff's bill, and the plaintiff can prove a promise or ac'knowledgment within that time, the replication may deny the 'plea generally, and conclude to the country." But is the plea itself a bar? It is said to be sufficient, because the indorsement is not the foundation of the action that the contract on which the action is based, is by parolthat if the note be demanded at maturity, not paid, and the indorser duly notified thereof, then he will pay; and as these obligations which the law imposes on the indorser, and without the performance of which the plaintiff cannot recover, are not embodied in the indorsement, the indorsement cannot be the foundation of the action. This position is unsound. An indorsement is, in fact, a bill of exchange. It is an open letter of request, drawn by one person upon another for the payment of a sum of money to a third person. But no action will lie on a bill of exchange without presentment for acceptance or payment, refusal and notice to the drawer; and the argument is, therefore, that if declared upon specially, it is not the foundation of the action, but the obligations on the plaintiff himself to present and give notice are; and he is, therefore, suing Haines v. Tharp. Dec. Term, 1846. himself on a penal contract which arises out of the written IN BANK. one. There is no foundation for such an argument. An indorsement is a written contract of which the law declares the effect; and when counted upon, it is the foundation of the action, and a plea that the cause of action did not accrue within six years, is no bar under the statute. From this state of the pleadings it follows that the issue made by the replication is an immaterial issue; and the question arises, can the Court legally give judgment for the plaintiff, or must a repleader be awarded? On this issue, if a verdict was found for the defendant, the Court ought nevertheless to give judgment for plaintiff non obstante veredicto. This may be done, says Chitty, where the plea is good in form, but not in fact, and a repleader will not then mend the case, and the Court ought immediately to give judgment; 1 Chit. Pl. 694. A repleader is awarded where the form and manner of pleading is bad, not the title; and where a cause of action is confessed, but not avoided by the plea, a repleader is unnecessary.-Idem. The plaintiff is in no worse condition than if a verdict was found against him on this issue, and which would be no objection. Judgment for Plaintiff. N. H. Swayne, for Plaintiff. N. Barrere and J. H. Thompson, for Defendant. Lessee of Hannel v. Smith. IN BANK. Dec. Term, 1846. LESSEE OF JACOB HANNEL vs. WILLIAM SMITH. The list of forfeited lands furnished by the Auditor of State to the County Auditors, for sale, must be authenticated by his official seal and signed by himself for his Chief Clerk. A sale of such lands will not be valid unless they have previously been listed for taxation by some pertinent description. THIS case comes before the Court by WRIT OF ERROR to the Supreme Court of HAMILTON County. The original action is ejectment. In the declaration the premises in controversy are described as a lot in Cincinnati, beginning on the western side of Western row, fifty-five feet 'south from Chesnut street; thence southwardly with Western row thirty feet for the front of said lot, and extending back 'the same width, one hundred feet more or less." At the last term of this Court in Hamilton county, the case was submitted to the Court without the intervention of a jury, and upon hearing the evidence the Court found the issue joined for the defendant, and rendered judgment accordingly. Thereupon, the plaintiff tendered his bill of exceptions in the following form: "In the trial of this cause, the plaintiff, to support the issue on his part, produced the following deed, marked exhibit A., from the Auditor of Hamilton County to the plaintiff's lessor, and rested. The defendant then offered in evidence a record book from the office of the Auditor of Hamilton County, which contained the following 'documents and entries: 1. The original letter of John Brough, Auditor of State, a copy of which follows, marked 'B. 2. A certificate of Hugh McDougal, Auditor of Hamil'ton County, a copy of which follows, marked C. 3. The 'following extract from the advertisement of forfeited lands and town lots, marked D. Also, exhibit E. Upon this evi'dence the defendant, by his counsel, prayed the Court to enter Lessee of Hannel . Smith. Dec. Term, 'judgment, which the Court did." Which bill of exceptions IN BANK. was sealed by the judges holding the court, and is made part of the record. The deed referred to, is a deed from the County Auditor of Hamilton County, conveying the land in controversy to the lessor of the plaintiffs, by metes and bounds, as set forth in the declaration. It was recited in the deed, that the land was offered for sale and sold as land forfeited for the nonpayment of taxes, on the second Monday of December, 1843, to the lessor of the plaintiff, and that the boundaries of the land had been ascertained by the surveyor of the county pursuant to law. The letter referred to, as contained in the record book of the Auditor of Hamilton county, and noted in the bill of exceptions as marked as Exhibit B, is as follows: "Auditor of Hamilton County: "AUDITOR OF STATE'S OFFICE, } "You will carefully examine the foregoing list, and strike from it such lands or lots as you may know to be erroneously forfeited, taking care that none escape the duplicate of taxation; you will then proceed to advertise and sell the remainder, according to the original act, for the sale of forfeited lands, and the amendatory act, passed February 15, 1842. Send me a paper containing your advertisement. Very respectfully, "JNO. BROUGH, Auditor of State. Exhibit C, is a certificate from Hugh McDougal, Auditor of Hamilton county, bearing date 11th December, 1843; stating, among other things, that the annexed list of lands had been offered for sale, and forfeited to the State, for the nonpayment of taxes; that they had been again duly advertised for sale the length of time required by law, the sale to commence on the second Monday of December, being the 11th day of the month, and to continue from day to day until all the lands should be sold; that the sale was actually opened on the said 11th day of December, and continued from day to day until the lands. were sold. 1846. |