Bradley v. Northern Bank

60 Ala. 252 | Ala. | 1877

MANNING, J.

The calculation by appellant’s counsel, of the day when the bill of exchange sued on in this cause became payable, is not correct. The 11th day of January, 1861, and not the 12th, was the term of the period of ninety days after the 13th of October, 1860, the day of the date of the bill; and the third and last day of grace, when the bill should have been paid or protested, was the l4th day of January, the day when the protest was made.

2. No adhesive substance is probably so good as wax, to receive, retain, and distinctly exhibit the figures and legend, or other devices, upon a seal, official or private ; and wax was used for that purpose, when an instrument was sufficiently executed for delivery by the seal alone of the party executing it. But, when his signature became as essential, and even more essential than the seal, wafers largely, and perhaps generally, took the place of wax; and now, instead of making an impression of the seal upon any adhesive substance affixed to the paper, upon which the intention or act of the party is declared in writing, the practice has become general to have official seals applied, with a strong pressure, upon the paper itself. And the opinion is expressed, in Pillow v. Roberts (13 How. 473), that the impression thus made is “less likely to be destroyed or defaced by vermin, accident, or intention, than that made on wax.” This is, doubtless, a principal reason, why the practice of sealing an instrument generally prevails. Counsel for appellant properly admit, that an instrument may be sufficiently sealed by such an impression of the seal upon the paper; but they insist, that it does not appear in this case that the protest objected to was so sealed. With the advantages, above mentioned, of having the impression thus made upon the paper, we must take the disadvantages. Differing with Justice Grier in the case above cited, we think that such an impression is not, generally, so well defined, as it would be on wax, and that, after a long time, it is apt to grow less distinct ; especially if the paper be not of a quality good for retaining it. Looking at the original protest, brought here to be inspected in this cause, seventeen years after it was made, we find upon it a distinct circular outline impression of a seal, with an indented inner edge, or rim, and within this a number of stars in a circular row, and between them and the edge the legend, “Notary Public, New Orleans, La.” This, with the signatures, we think sufficient to establish the authenticity of the protest, in the absence of all evidence to create any suspicion of its genuineness. The certificate on the other page of the protest, on the same leaf, is authenticated in the same manner, and the circuit judge did not err in permitting them to come in as evidence.—See a similar ruling, in Heighway v. Pendleton, 15 Ohio, 735.

3. In Boit & McKenzie v. Carr (in MS), the suit was against the indorser of a promissory note, payable at a bank in Savannah, Georgia; and we held that the protest there made was evidence against defendants, of the presentment for payment, non-payment, and notice thereof to him, by virtue of section 1089 of the Bevised Code of 1867. Although, upon the compilation of that Code, the matter of this section was placed in the chapter, and among the sections of the Code of 1852, which related to the appointment, qualification, and duties of notaries public of this State ; yet its more appropriate place was the chapter “On Evidence.” It is the substance of a statute of 1851; and according to the general and uniform practice, this enactment has been regarded by the bench and bar of this State, as relating to the acts of foreign notaries, as well as to those who held their commission from the governor of Alabama.— See 1st Brick. Dig. 267, § 235. No good reason can be assigned, why it should not be so understood. The certificate of a notary-public of Louisiana is, therefore, receivable in our courts, as evidence of the notices he had given of the protest of a bill of exchange, upon which suit is brought here.

1. It is further objected that, in the present instance, the presentment for payment was defective. The protest shows, that the notary presented it at the office of the drawees, “to Mr. McLarin, a competent clerk, no member of the firm being therein; and demanding payment, was answered that it could not be paid.” This court held, in Phillips v. Poindexter (18 Ala. 580), in an elaborate opinion by Parsons, J., in the case of a foreign bill of exchange, — a bill drawn in this State, upon drawees in Louisiana, — that the notary’s certificate, that the person of whom he made the demand was the attorney in fact of the drawees, was prima fade evidence that he was so. See, also, Stainback v. Bank of Virginia, 11 Gratt. 260. It was sufficient, however, to show, as is done in this case, that the demand was made at the office of the drawees, and, they not being there, upon a person named by the notary, whom he found in the office.—Branch Bank v. Hodges, 17 Ala 42, and authorities there cited.

5. A statute, contained in a book of 500 pages, of what purports to be tbe “Acts of tbe Legislature of Louisiana,” printed on opposite pages in the English and French languages, was introduced as evidence, against the objections of appellant. Each act is authenticated by signatures, purporting to be those of the speaker of the house of representatives, the president of the senate, and the governor of Louisiana, respectively ; and according to the title page, they are acts passed by the “Legislature of the State of Louisiana, at its second session, held and begun in the town of Baton Rouge, on the 15th of January, 1855. Published by authority. New Orleans : printed by Emile La Sere, State Printer, 1855.” The objection to its admission ivas, that it did not appear, on the face of the book, that it was printed by authority of the State of Louisiana. It seems to us that this does (in the language of § 2693, R. C.) appear “upon the face of the book.”

We find no error in the record. Let the judgment be affirmed.

Brickell, C. J. not sitting, having been of counsel.