The case of Bank of United States v. Carneal, 2 Peters, 543, may be considered as throwing some light on the subject of inquiry. It is held that when the note is payable at a bank, and the bank is itself the holder of it, no demand is necessary. It is the duty of the maker to go to the bank within the usual hours of business and pay it; and, if he fail to do so, the note is dishonored. Toward the close of the opinion, given by Mr. Justice Story, it is stated thus: "A suggestion has been made at the bar that a letter to the indorser, stating the demand and dishonor of the note, is not sufficient, unless the party sending it also informs the indorser that he is looked to for payment. But where such notice is sent by the holder, or by his order, it necessarily implies such responsibility over. The purpose may be reasonably inferred from the nature of the notice." We have thus attempted, at the risk of being somewhat tedious, to ascertain what the rule is upon this subject, on account of the extreme importance of certainty and uniformity in the rules of law applicable to the rights and duties of holders and other parties to notes and bills of exchange. And we take that rule to be, that as an indorser is liable only conditionally for the payment, in case of a dishonor of the note at its maturity by the maker and notice thereof to the indorser, in order to charge him, notice of such dishonor must be given him by the holder or his agent, or some party to the bill; that mere notice of non-payment, which does not express or imply notice of dishonor, is not such notice as will render the indorser liable. In order to apply the rule thus stated to the present case, it will be necessary to look at the facts stated in the report. It appears that the presentment and demand on the promisor were made on the morning of the day on which the note fell due. Afterwards, at about eleven o'clock, the plaintiff caused a written notice to be left at the defendant's dwellinghouse, of which the following is a copy: "Boston, May 4, 1838. Mr. Louis Dennis. Sir, I have a note signed by C. E. Bowers and indorsed by you for seven hundred dollars, which is due this day and unpaid; payment is demanded of you. C. C. Gilbert." This notice comes from an individual, not from a bank. It was delivered at eleven A.M. There would then be no default and no dishonor, unless a demand had been made on the promisor. An averment, therefore, that it was unpaid did not, by necessary implication or reasonable intendment, amount to an averment or intimation that payment had been demanded and refused, or that the note had been otherwise dishonored. The court are therefore of opinion that the notice was not sufficient to render the indorser legally liable. F. & H. CHANOINE v. FOWLER. (3 Wendell, 173. Supreme Court of New York, August, 1829.) By whom notice should be given. — Notice of dishonor cannot be given by a stranger; it should be given by the holder, or by one who is a party to it, and who would, on the same being returned to him, have a right of action on it. ASSUMPSIT by the payees against the drawer of a bill of exchange. The circuit judge, in charging the jury, instructed them that, if the defendant had information in due season of the non-acceptance of the bill, it was good, no matter who sent it. MARCY, J. To determine whether the defendant had legal notice of the non-acceptance of the bill, it will be necessary to see when it was given, and from whom it came. Messrs. Sewalls had transmitted the bill to France, and received information of its non-acceptance on the 4th or 5th of April. H. D. Sewall says he did not himself give notice thereof to the defendant, nor does he know that notice was given by his house; although it was their custom to give notice in such cases, and he has no doubt the defendant received it. He learned, from a conversation with the defendant between the time of receiving notice and the 14th of April, that he had knowledge that the bill was dishonored. The judge, at the trial, ruled that, if the defendant had notice in due time of the non-acceptance of the bill, it was no matter whence it came, it was available to the plaintiffs. The rule of law in relation to the notice was, I apprehend, laid down in a manner too broad and unqualified. The rule has heretofore fluctuated; but it never has been authoritatively stated, as I can find, to be as the judge laid it down on the trial, except in the case of Shaw v. Coates, at the sittings before Lord Kenyon, mentioned in Selwyn's N. P. 320, n. 25.1 Repeated decisions since, both in term and at nisi prius, have qualified and restricted the broad proposition of the judge in this case, and of Lord Kenyon in the case of Shaw v. Coates. In some instances, it has been decided that the holders or their agents are the only persons to give notice of the dishonor of bills; but it seems to be now settled that it is not absolutely necessary that the notice should come from the holder of a bill, but may be given by any person who is a party to it, and who would, on the same being returned to him, have a right of action on it. Chitty, Bills, 229; 2 Camp. 373; 1 Stark. 29; Bayley, Bills, 161. A notice from a mere stranger is not sufficient; and the charge of the judge was broad enough to sanction such a notice. New trial granted. bill, need be protested when dishonored. Kirkland v. Wanzer, 2 Duer, 278; Smith v. Curlee, 59 Ill. 221; Union Bank v. Hyde, 6 Wheat. 572; Carter v. Burley, 9 N. H. 558. Nor need a 1 This citation should probably be Shaw v. Croft, referred to in Selwyn's N. P. 354. check be protested. Pollard v. Bowen, 57 Ind. 232. And at common law notarial fees cannot be recovered except upon the protest of a foreign bill. City Bank v. Cutter, 3 Pick. 414. The States of the Union are foreign to each other in respect of the protest of commercial paper. Bank of United States v. Daniel, 12 Peters, 32, 54; Dickens v. Beal, 10 Peters, 572; Buckner v. Finley, 2 Peters, 586; Phoenix Bank v. Hussey, 12 Pick. 483; Commercial Bank v. Varnum, 49 N. Y. 269; Ticonic Bank v. Stackpole, 41 Maine, 302; Grafton Bank v. Moore, 14 N. H. 142. By the rules of the common law, the act of a notary in protesting an inland bill or a promissory note is deemed entirely null, so far as the mere protest is concerned; though the notice of dishonor sent by him would doubtless be valid, since his act is duly authorized by the holder. But the protest cannot be used in the courts, as it may be in an action upon a foreign bill, to prove that the steps have been duly taken to fix the liability of the defendant. The protest is not evidence by the weight of authority of the facts recited in it in such cases: Nicholls v. Webb, 8 Wheat. 326; Kirtland v. Wanzer, supra; Carter v. Burley, 9 N. H. 558; unless the notary has deceased. Nicholls v. Webb, supra. But see Colms v. Bank of Tennessee, 4 Baxter, 422. The facts must be proved by the best evidence, which, in the case of inland bills and promissory notes, is the testimony, directly given, of the person who took the steps. Doubtless, if a notary in fact acted, he could use the protest, when on the witness-stand, for the purpose of refreshing his memory. Sasscer v. Farmers' Bank, 4 Md. 409. But the protest could not be otherwise used, unless the act of the notary was authorized by statute (see infra), or, as we have said, unless the notary had deceased. Nicholls v. Webb, supra. Statutes, however, have been passed in some of the States, sanctioning the common practice of protesting inland bills and promissory notes, though probably never requiring it; the result of which is to make the notarial certificate of protest evidence of the facts stated therein, and probably to give the holder the right to recover notarial fees. But the New York statute does not authorize the production of a foreign notarial certificate of the protest of a promissory note. Kirtland v. Wanzer, 2 Duer, 278. And this is true though the foreign protest was authorized by law where made. Ib. But see Shanklin v. Cooper, 8 Blackf. 41; Turner v. Rogers, 8 Ind. 189. The dishonor of a foreign bill can be proved only by the notarial protest: it cannot (without explanation) be shown by witnesses or in any other way. Ocean Bank v. Williams, 102 Mass. 141; Phoenix Bank v. Hussey, 12 Pick. 483; Buckner v. Finley, 2 Peters, 586; Rogers v. Stevens, 2 T. R. 713; Gale v. Walsh, 5 T. R. 239; Orr v. Maginnis, 7 East, 359. And this is true as well when the protest is for non-acceptance, certainly if it was necessary to present the bill for acceptance (it being payable at or after sight), as where it is protested for non-payment. The want of a protest cannot be supplied by witnesses, or by the testimony of the party, or in any other way, Rogers v. Stevens, supra; Gale v. Walsh, supra; Orr v. Maginnis, supra; Byles, Bills, 234, 13th Eng. ed., unless justified by the foreign law. Omissions, however, in the protest of inland bills and promissory notes (when such protest is authorized by statute) may be supplied by oral evidence of the notary. Nailor v. Bowie, 3 Md. 251; Sasscer v. Farmers' Bank, 4 Md. 409; Wetherall v. Clagett, 28 Md. 465; Seneca Bank v. Neass, 5 Denio, 329; Magoun v. Walker, 49 Maine, 419. But quære if the notary can be permitted to contradict the language of the protest? See Sasscer v. Farmers' Bank, supra; Sangston v. Graham, 1 Md. 59; Hunter v. Van Bomhorst, Ib. 504, intimating that he cannot do so. The notary, when called as a witness as to a particular fact in such cases, may refresh his memory from the notarial record and the protest. Sasscer v. Farmers' Bank, supra. On the other hand, the mere production of the protest made upon the dishonor of a foreign bill, and attested by a notary public with his seal, is evidence of the dishonor of the bill, without proof of the notary's signature or that he affixed the seal of his office. Byles, ubi supra; Dupays v. Shepherd, Holt, 297; Townsley v. Sumrall, 2 Peters, 170; Halliday v. McDougall, 20 Wend. 81; Bank of Rochester v. Gray, 2 Hill, 227; Crowley v. Barry, 4 Gill, 194; Carter v. Burley, 9 N. H. 558. Indeed, the language used of the duly certified acts of a notary is like that used in the Constitution of the United States as to judgments of the sister States: "full faith and credit" are given them everywhere. See Parsons, Notes and Bills, 634, 635. There is some doubt if the protest of a foreign bill can be thus used in the country in which the protest was made. If, for instance, a bill were drawn in New York upon a party in Boston, and protested at the latter place, and the drawer sued in Massachusetts, could the protest be received in the same way as a protest made in another State or country? The answer has sometimes been given in the negative. Chesmer v. Noyes, 4 Camp. 129. But the contrary seems to be the better view. Story, Bills, § 277, note. If the protest was not made by a notary, or if the notary has not used a seal, the rule is different, and the plain tiff must show that the act was done according to the law of the country in which the protest was made. Carter v. Burley, supra. And it would seem that if the signature were not certified by some one purporting to be duly qualified by law to certify it, evidence of its genuineness would be necessary. If a seal be required by law, omission to use it will be fatal to the use of the protest. Tickner v. Roberts, 11 La. 14. But see Lambeth v. Caldwell, 1 Rob. (La.) 61; Bank of Kentucky v. Pursley, 8 T. B. Mon. 238. And see 1 Parsons, Notes and Bills, 634, 635, note. The seal need not be impressed upon wax or wafer: it is enough to impress it upon the paper. Bank of Manchester v. Slason, 13 Vt. 344. A scrawl would be insufficient unless authorized by statute. See Carter v. Burley, supra. But it has been held that the notarial certificate is only prima facie evidence of the facts stated in it, even in the case of a foreign bill. Spence v. Crockett, 5 Baxter, 576; Gardner v. Bank of Tennessee, 1 Swan, 420; Union Bank v. Fowlkes, 2 Sneed, 555; Ricketts v. Pendleton, 14 Md. 320. See also Colms v. Bank of Tennessee, 4 Baxter, 422, holding that the protest of a promissory note is also prima facie evidence of its contents. See, however, supra, p. 273. The seal is of course but prima facie evidence of the admissibility of the protest. Carter v. Burley, 9 N. H. 558. If the certificate assert that demand was made of an attorney in fact of the drawee or acceptor, or of a clerk of such party, it is held that the credit attaching to the protest will also carry with it evidence, prima facie, that the person upon whom the demand was made was authorized to announce the dishonor. Phillips v. Poindexter, 18 Ala. 579; Stainback v. Bank of Virginia, 11 Gratt. 260. |