CASES ARGUED AND DETERMINED IN THE SUPREME COURT OF TENNESSEE. NASHVILLE: MARCH TERM, 1836. MARR VS. JOHNSON. A prior endorser of a note, is liable to all subsequent endorsers, where due diligence NASHVILLE, has been used to fix his liability; nor is the case different where the endorsements were March, 1836. made for the accommodation of the drawer, and no contract made other than that created by their respective endorsements. No consideration is necessary between the maker and endorser of an accommodation note; the holde takes it upon the credit and responsibility of the endorsers; the payment of value by the holder, or by a subsequent endorser, when he takes up the note, and the receipt of the consideration by the drawer, is a sufficient consideration to support the endorser's promise. A notice given by the holder to several endorsers, enures to the benefit of the endorsers or preceding parties, so that the first endorser, who has received notice of its non-payment from the holder, but not from the second endorser, is liable to the second endorser in the same manner, as if notice had been received by him. Notice directed to an endorser at his place of residence, is good, notwithstanding he may have temporarily removed. Notice sent to the place of residence of a member of congress, is good, although he was, at the time the notice was sent, at Washington city, attending to the discharge of his official duties. The verdict of a jury contrary to law, will be set aside, and a new trial granted. Where the jury found a verdict against law, it is no ground for refusing a new trial, that it is a hard case upon the defendant, and that the justice of the case has been attained; in cases upon commercial law, the law of the case is always the justice of the case. Joel C. Rice executed a note to the defendant, Johnson, payable in the United States Bank, at Nashville; which note was endorsed by Johnson and Marr, and negotiated in bank Marr V Johnson. NASHVILLE, for the accommodation of Rice. Marr Johnson. The note was not paid at its March, 1836. maturity, and the drawer and endorsers were protested. Notices were put in the post office in Nashville, in due time, addressed to Marr and Johnson, and directed to Clarksville. Marr lived in the neighborhood of Clarksville, and Johnson's place of residence was there, though, having been elected to Congress, he was in Washington city, when the note fell due, and when the notice was sent to Clarksville as aforesaid. Marr paid the note to the bank, and brought this action against Johnson as the first endorser on the note, to recover the amount so paid by him. Various pleas were filed, only two of which, it is necessary to notice. 1. That when the note was endorsed, there was an undertaking and agreement between the plaintiff and defendant, to become jointly bound as securities for said Rice, for whose accommodation the note was endorsed. 2. That the endorsement was made without any consideration moving thereto. To the first of these pleas, there was a replication and issue; and to the last, there was a demurrer, which was sustained by the court below. The jury rendered a verdict for the plaintiff for half the amount of the note. The plaintiff moved for a new trial, which the court overruled, and rendered a judgment upon the verdict, from which, the plaintiff prosecutes this appeal in error. It was proved, that Marr had a conversation soon after the note was protested, during which, the witness told him that some arrangement should be made, by which defendant should pay half the note; to which, the plaintiff replied, that he had consulted counsel, and was advised that he could make Johnson pay the whole amount as he was the first endorser. The note fell due, and was protested the 17th of January, 1832, and the defendant proved that he was a member of congress, and was then in Washington city, and continued there until the adjournment of congress, the 16th of July thereafter. There is no exception to the charge delivered by the court to the jury, and upon this evidence, the jury found the verdict aforesaid. F. B. Fogg, for plaintiff in error. The case of M'Neil vs. Elam, Peck's Rep. 268, decided in conformity with the commercial law, and M'Donald, vs. M' Gruder, 3 Pet. Rep. page 470, are conclusive, to show that Marr is entitled to recover the whole amount. See Stewart vs. Eden, 2 Caines, 127.: Chitty on Bills, 227: Stafford vs. Yates, 18 John. 328. T. Washington and G. W. Boyd, for defendant in error. 1. The sending of the notice to Clarksville, under the circumstances stated, was insufficient to fix the liability of Johnson. The notice from the bank is insufficient, because it does not inform the defendant that he is looked to for payment. Chitty on Bills, 314. 2. The evidence set forth in the record, tended to show the existence of an agreement between these parties, that as between each other, they were only to be bound as co-securities. It was for the jury to judge of the effect of that evidence, and it convinced them that such an agreement was made. This court never reverses, upon the mere ground that the evidence before the jury was not full enough to warrant their verdict. 3. When the substantial justice and equity of the case has been attained by the verdict, and not by illegal means, the court will not grant a new trial. As between the parties, the consideration may be enquired into. Chitty on Bills, 411. Upon this last point, defendant cited 13 Johnson, 52: 7 Johnson, 361: 2 Caines' Rep. 248: 1 Espenase's Rep. 261: 1 Hawks, 313: 2 Hawks, 590. GREEN J. delivered the opinion of the court. The only inquiry is, whether upon this evidence, as applicable to the law of the case, a new trial ought to have been granted. It is manifest that there was no agreement between the parties, other than that which the law implies. The evidence relied upon does not tend to prove such an agreement, but the contrary. It is true that Mr. Boyd, who seems to have been the friend or agent of Mr. Johnson, told the plain NASHVILLE, Marr V Johnson |