STANLEY vs. BANK OF MOBILE, 23 Ala. 652

LIGON, J. 1. It is unnecessary to examine into the irregularities alleged to exist in the notice and order of continuance made by the court on the first day of the term to which it was returnable, inasmuch as wc think it well settled, that the subsequent appearance of the defendant at the same term, and his pleading to issue, amounts to a waiver of all exceptions to such irregularities. Where a party appears by counsel and pleads to the merits, he will not afterwards bo heard to say that ho was not notified b}r service of process, or that irregularities exist in previous orders of continuance.—Moore v.

Phillips, 8 Porter 567; Hobson & Sons v. Emanuel, ib. 442; 8 Stew. 480; 9 Ala. 399. Such an appearance and pleading waives all irregularities which may exist in the form and service of the process by which the defendant is sought to be brought before the court. Crawford v. Br. Bank at Mobile, 7 Ala. 205.

This record shows that the defendant appeared at the return term, after the judgment by default had been rendered against him, moved for and obtained an order to set that judgment aside, and to place the cause on the trial docket, and by his attorneys, Cuthbert & Cuthbert, pleaded the statute of limitations and the general issue, it was too late after this for him to avail himself of any thing which was only matter in abatement or discontinuance of the suit. 2.

Wc have already held that, incases in which Banks are allowed to proceed against their debtors by notice and motion summarily made, the notice is the leading process in the case. (6 Ala. 911.) it is the commencement of an action for the recovery of the demand, and, if followed up by service on the defendant and motion for judgment against him at the time specified in it, it serves the purpose of both writ and declaration, and will effectually hinder the statute of limitations from operating a bar, if it had not effected a bar before the service of such notice.

The bare fact that it is at the option of the plaintiff to make or forbear his motion for judgment at the time appointed in his notice, will not bo allowed to change this result, any more than the power which the plaintiff possesses to dismiss or discontinue his suit when commenced by capias would have such an effect when the suit is commenced by that process. The commencement and prosecution of a suit, in any form authorized by law, is all that is required of the holder of the demand, in order to protect him against the statute.—Angel on Lim. 334; Ross v. Luther, 4 Cowen 158.

In the ease under consideration, the Bank commenced proceedings, in the form prescribed by the statute, before six years had elapsed from the time the cause of action accrued, and consequently her demand against the plaintiff in error is unaffected by the statute of limitations. 3. There is no error in the qualification to the first charge asked by the defendant and given by the court.

The parol proof of the notary, and the witness who proved that the defendant kept no clerk in his office, should have been referred by the court to the jury, in aid of tho certificate of notice accompanying the protest of the notary ; and it was for tho jury to say, from the whole proof thus taken together, whether the facts would justify the conclusion that the defendant ever received the notice left at his office. The charge has this extent, no more; and is consequently free from error.-Rives v. Parmley, 18 A. R. 261; Coster et al. v. Thomason, 19 Ala. 721.

The refusal to give the second charge asked, accompanied, as the hill of exceptions states it to have been, by a reference of the sufficiency of the notice to the jury, is not in our opinion entirely free from error.

While it is conceded that this charge, in the form in which it was asked, was properly refused, for the obvious reason that it assumes the truth of tho facts offered in evidence, and takes from the jury their unquestionable right to pass upon the truth, or falsehood of the testimony ; yet, it is stated in tho bill of exceptions, that tho court, on refusing the charge, “ left it to the jury to decide as to the sufficiency of the notice.” We think it clear, that tho provinco of tho jury, in respect to questions of diligence in cases like the present, is confined to the ascertainment of tho facts which are relied on by the plaintiff to constitute notice; and it is for tho court alone to pass upon tho legal sufficiency of these laces to constitute notice.

To say, therefore, to tho jury, that it is for them to say whether tho facts proved constitute duo diligence on tho part of the holder in giving notice of non-payment to tho endorser, is to refer to them a question of law, and is consequently erroneous. Such is the effect of the ruling of tho court on the second charge asked by the defendant below.

It is no answer to this, to say that, when the court referred it to the jury to pass upon the sufficiency of the notice, it must he understood to mean that they roust -ascertain whether the notice left at the office of Stanley had ever been received by him; that they must find what measure of diligence the proof showed the Bank to have used to give him notice of the non-payment of the note. We do not think the language of the bill of exceptions will bear such a construction, nor can we presume the jury so understood it.

The natural and ordinary sense of the words used is, that the jury must pass upon the legal sufficiency of the notice to the endorser, and we must presume that the jury so understood it. The sufficiency of the evidence to establish the fact that the endorser was notified of the non-payment of the note, and the legal sufficiency of such notice when proved, are very different questions ; the former belongs to the jury, and the latter exclusively to the court.

But in this case, the question of the sufficiency of the proof to make out the necessary diligence with respect to notice, is properly referred to the jury in the first charge given by the court, and the verdict shows, that, in the exercise of their rightful powers, they find it sufficient to establish such facts as are necessary to constitute notice of non-payment.

For when it is shown that a notice, accompanied by a protest of a note for non-payment, is left at the office of an attorney, who is the endorser, and who keeps no clerk, in the afternoon of the day on which by law it is required to be given, the law presumes ho received it, and it is sufficient to charge him. The record in this case shows this state of facts, and by this means excludes the idea that any injury has resulted to the plaintiff in error from the exceptionable charge of the court which we have just examined. It is, therefore, error without injury, and does not authorize a reversal.

The cases of Rives v. Parmley, 18 Ala. R. 261, and Coster, Robinson & Co. v. Thomason, use, &c., 19 Ala. 721, each present a different state of facts in respect of notice from the one under consideration, and consequently should not be allowed to control it. Let the judgment be affirmed.