9 N.H. 558 | Superior Court of New Hampshire | 1838
The original instrument, which has occasioned the existence of this action, is a promissory note.
Such being the similarity of operation between the in-dorsement of promissory notes and the drawing and indorsement of bills of exchange, there would seem to be no sound objection to treating the indorsement of the former as if it was in fact drawn out in form as a bill. An indorsement on a bond, ordering the contents to be paid to a third person, may be so treated. 1 Bay’s R. 66, Bay vs. Freazer.
The statute of Ann provided that actions might be maintained upon promissory notes against the makers or indors-
In this case the makers or acceptors resided in Pennsylvania, and the defendant, who is promisee and indorser, in this state. Treating it as a bill, it is one drawn by a citizen of one of the United States upon citizens of another state in the Union ; and a question has been suggested, whether bills so drawn are to be regarded as foreign or inland. If inland, the evidence of a presentment for payment, and a neglect by Carr & Lunt, it is admitted would be insufficient, a protest being incompetent for that purpose. 1 Salk. 131; 6 Wheat. 572; ditto 146, Young vs. Bryan ; 2 Barn. Ald. 696, 700, Windle ws. Andrews.
For certain purposes, all the states in the Union form but one government. That government, in its operation, embraces all the states. Its laws, constitutionally enacted, are in force through the whole extent of their territory; and its tribunals of justice exercise a jurisdiction throughout the
The promotion of their commercial prosperity was undoubtedly one of the objects which led to the adoption of the constitution of the United States ; but regulations respecting the drawing, negotiation, and presentment of bills of exchange, seem not to be within the purview of that constitution, and these matters have been left to the legislation and regulation of the several states, as if they were in all respects independent governments. Under such circumstances the states may well be regarded, in the consideration of matters of that character, as foreign to each other; and they have been so considered in several cases adjudicated in the courts of the United States, and of individual states. 2 Peters’ Sup. C. R. 170, Townsley vs. Sumrall; ditto 586, Buckner vs. Finley; and opinion of Mr. Justice Washington, in Lonsdale vs. Brown, ditto 688, Appendix No. II. ; 12 Pick. R. 483, Phœnix Bank vs. Hussey. See, also, 15 Wendell 527, Wells vs. Whitehead.
The indorsement which forms the immediate subject matter of this action, if it was regarded as a bill, would be a foreign bill. In that character a protest by a notary public at the place of payment, if duly authenticated, has long been settled to be the regular evidence of dishonor. 4 D. & E. 175 ; 5 D. & E. 239, Gale vs. Walsh; 2 Bay’s R. 376, Payne vs. Winn; 6 Wheat. 574 ; 12 Pick. 484 ; 3 Wend. 173.
But it has been held by high authority that “ no demand of payment or notice of non-payment, by a notary public, is necessary in the case of promissory notes,” and that “a pro
In City Bank vs. Cutter, 3 Pick. 414, also, it is held that “no protest is necessary upon the dishonor of a promissory note, and notarial fees cannot be recovered of the in-dorser.” But in that case the parties, it would seem probable, were all residents in Massachusetts.
It is not necessary, however, to settle this question for the purpose of disposing of this case, as there is another point upon which the case must be sent to a new trial; and as a farther examination of the authorities is desirable, we waive any decision upon it at this time.
It is denied that the protest offered in this case is so authenticated that it can be received, even if a protest is competent evidence. The case finds nothing on this subject; but it is understood from the argument that the protest bears the signature of a person assuming to act as a notary, with the impress of a notarial seal upon the paper, but without any wafer or wax. This it is said cannot be regarded as a seal in our courts.
If the protest is made up according to the laws of Pennsylvania, for that purpose, at the time when the demand should have been made, and the seal can be regarded as a
For these reasons we are of opinion that the act of the notary, or other officer; in making a protest, is regularly to be authenticated according to the forms of the place where the demand is made, at the time of making it. But it is proper to make a distinction in admitting the proof. If the protest is by a notary, and under seal, the notarial seal will furnish prima facie evidence that it was duly made according to the laws of the place, and be sufficient to admit the protest in proof; but if not made by a notary, or not under
In this case the protest is by a notary, under what purports to be an official seal. It is not a mere scrawl, but a distinct impression upon the paper of the protest, showing the character of the notarial seal. Nothing would have been added to its character by wafer or wax ; and as this is not an uncommon mode of affixing official seals,, we are of opinion that it is sufficient. It is to be presumed, from the production of the instrument itself, that it was duly affixed, according to the laws of Pennsylvania, until there is something to impeach it. The notarial seal gives the protest faith and credit as prima fade evidence, without other proof. Whether a mere scrawl could be regarded here as a sufficient seal to authenticate a protest, without evidence of the official character of the notary, and evidence of the laws of the state, may perhaps be doubted.
But it does not appear in this case that the defendant was duly notified of the dishonor of the note, although it is not improbable he may have been.
Upon this subject the authorities have not been entirely uniform. It has in some instances been submitted to a jury to say whether the notice of dishonor had been given in a reasonable time. 1 Camp. 246, Scott vs. Lifford; 9 East 347, C.; 1 N. H. R. 142, Haddock vs. Murray. But the inconvenient uncertainty which this introduces” has led commercial men and courts to attempt the establishment of a more definite rule. 1 N. H. R. 142; 1 D. & E. 168 ; 1 Peters’ S. C. R. 583. In laying down a general rule, where the parties reside in different places, it has been said, that notice should be given as soon “ as can conveniently be done,” or “ as soon as communication is usually had between the places where the respective parties reside,” (1 N. H. R.
It is settled in England that it is not required that notice should be forwarded by the next practicable post, but by the post of the next day. 2 Barn. & Ald. 500, Williams vs. Smith ; ditto 501, Wright vs. Shawcross, in note ; 1 M. & M. 61, Geill vs. Jeremy; 15 East 291, Langdale vs. Trimmer ; 15 Mau. & Sel. 68, Bray vs. Hadwen. And there seems to be quite a sufficient weight of authority to establish the true rule to be, that notice to a prior party, where the parties live in different places, is sufficient if forwarded by the mail of the day following the dishonor, or that on which an indorser receives due intelligence of it. 2 Wheaton’s R. 373, Lenox vs. Roberts; 9 Peters’ R. 45, Bank of Alexandria vs. Swann ; 2 Caines’ R. 344, Jackson vs. Richards; 20 John. R. 146, Robinson vs. Ames ; 8 Pick. R. 54, Talbot vs. Clark; 3 Conn. R. 495, Hartford, Bank vs. Stedman.
This rule, however, must be qualified by the authorities before cited, so far that if the party receiving a notice can not, by the exercise of reasonable diligence, forward notice to a prior party, by the mail of the day following, it will be sufficient if sent by the next. 4 Bingham 715, Hawkes vs. Salter. In this country, where many of the mails go out at an early hour of the morning, and are sometimes closed at
It has been further held, that where there are two mails on the same day, if the party put the notice into the post-office in season for either, that is sufficient. 17 Mans. R. 454, Whitwell vs. Johnson; and see 2 Camp. 208, Smith vs. Mullet. But in 1 Pick. 405, it is said it is not necessary that notice should be given until “the next mail after the day on which the demand is made.” It is probably not important in this case to express any opinion upon this last point. If each party through whose hands notice was forwarded to the defendant, availed himself of his right to give notice by the mail of the next day after the dishonor, or after he himself received notice, it is not improbable that the notice was duly transmitted.
But neither the holder, or any prior party receiving notice, is required to omit forwarding notice until the mail of the next day; but the holder may, at his pleasure, forward a notice on the day of the dishonor, if the course of the mail will admit of it; and an indorser may in like manner forward a notice on the same day he receives one. 3 Camp. 193, Burbridge vs. Manners; 1 Pick. 401, Shedd vs. Brett; 1 John. Cas. 328, Corp vs. McComb ; 6 Wheat. 104, Lindenberger vs. Beall. And should any party do so, this will not enlarge the time allowed to any other party, nor relieve him from the operation of the rule requiring notice to be sent by the mail of the next day after receiving one. 2 Camp. 208; 4 Barn. & Ald. 451, Turner vs. Leech.
There is no evidence in this case of the course of the mails, nor does it appear whether there was a party at Philadelphia, nor at what time, or in what manner notice was sent from that place, nor when it was received by Hutchinson, in New-York. The objection on this part of the case
If due measures have not been taken to charge the defendant as indorser, the action cannot be sustained. There is here no sufficient evidence to charge the defendant, on the ground that he waived his rights by a subsequent promise. It does not appear that he had any knowledge of laches, if there had been any. 2 N. H. R. 340, Ladd vs. Kinney; 3 N. H. R. 346, Otis vs. Hussey ; 7 N. H. R. 271, Farrington vs. Brown.
Under certain circumstances a promise to pay has been held to be prima facie evidence of demand and notice. 7 East 231, Lundie vs. Robertson; 8 Pick. 1, Martin vs. Ingersoll; 3 John. R. 71, Piersons vs. Hooker. But see 11 John. R. 180, Agan vs. McManus ; 16 John. 152, Trimble vs. Thorne. That principle, however, if correct, cannot avail to sustain this action, on the evidence before us. The defendant agreed to put into the hands of Gray a quantity of hammers, as collateral security for his responsibility as indorser ; but this is not a promise to pay ; and if he had performed that agreement, he would still have been at liberty to contest his liability. It must be construed, therefore, as no more than an agreement to give security for any liability legally resting upon him as indorser, and this is not sufficient. 6 Wend. 661, Jones vs. Savage, and cases cited.
Furthermore, Gray does not appear to have been the agent of the plaintiff. He was the agent of Hutchinson ; and a promise to pay, made to him, would have been a promise to Hutchinson, and not to the plaintiff. This might perhaps be urged as an additional reason why the plaintiff is not entitled to treat what was said to Gray, as a waiver, by the defendant, of any right to require proof in an action in favor of the plaintiff.
New trial granted.