Opinion
April Term, 1850
N. Hill, Jr. for appellant.
J.A. Collier, for respondent.
The fact that the bill purported to have been drawn at Washington City, where the notice was sent, furnished very little, if any, evidence that the drawer resided at that place; and did not dispense with the necessity of inquiring for his residence. ( Lowery v. Scott, 24 Wend. 358; Spencer v. Bank of Salina, 3 Hill, 520. And see Taylor v. Snyder, 3 Denio, 145.) In relation to inquiry, the defendant insists that the notary has sworn to nothing but a conclusion of law. But that is saying too much. When all the facts are ascertained, what is due diligence in making inquiries for the residence of the drawer is a question of law. But due diligence in the aggregate, includes both fact and law. When a witness swears to due diligence in making inquiries, he speaks of two things; first, that there was some diligence, which is a matter of fact; and second, that there was due or sufficient diligence, which is matter of law. In swearing to some diligence, the witness speaks of a fact within his knowledge; but in affirming that there was due or sufficient diligence, he is only giving his opinion upon a question of law, which he has no right to decide. Still if a notary should swear to due diligence in making inquiries, and the defendant should neither object to his testifying in that manner, nor cross-examine for the purpose of analyzing the testimony, and separating the fact from the law, I am not prepared to say that the evidence would amount to nothing. But it is not necessary to decide that point. The witness did not swear to due or sufficient diligence; but that he had made "diligent inquiry" for the residence of the drawer. That was speaking to a matter of fact. The witness evidently intended to be understood as saying, that he had not only made inquiry, but that it was a careful, thorough, or business-like inquiry.
It is true that the witness should have told what in particular he did, so that the court, or court and jury as the case might be, could determine whether enough was done. But if the defendant allows a witness, without objection, to swear that there was a diligent inquiry, and then puts no question on the cross-examination for the purpose of drawing out particulars, I think the case may properly go to the jury to say what the evidence is worth.
The witness was examined on a commission; but the interrogatories are not in the case. It may be that they put the very question which the witness has answered; and that the defendant neither objected to that question, nor proposed any cross-interrogatory for the purpose of ascertaining what the witness meant by diligent inquiry. The defendant may have been content to take the statement of the notary on the question whether the inquiry was a diligent one or not.
And besides; we have got only a part of the deposition of the notary. The case states, that he "testified among other things, as follows." We can not say that other parts of his testimony would not help out defects in the part which is given.
In addition to the fact of diligent inquiry for the residence of the drawer; where he was at the time, and where a letter would reach him, the witness says, that "at the time of the protest, the defendant resided at Washington in the district of Columbia, to the best of my knowledge and belief; that was his reputed place of residence, and I believe he was there at the time." Now although "belief" would be nothing without inquiry, it is but reasonable to conclude, that what the witness believed after making diligent inquiry was founded on the information which he got in making the inquiry. And besides, the witness swears to the fact — not belief — that Washington was the drawer's reputed place of residence.
It is true that the witness should have told what information he received, and left it to others to say whether he was right in acting upon it. But here again it is proper to notice, that no objection was taken to the manner in which the witness testified; nor does it appear that he was cross-examined, or what were the interrogatories annexed to the commission. And what is also important, we have only a part of the deposition; and there is no statement in the case that we have all that bore upon this question. Under such circumstances, I do not see how we can say, that there was not sufficient evidence to carry the cause to the jury.
I am of opinion that the judgment of the superior court should be affirmed.
Judgment affirmed.