Chanoine v. Fowler

3 Wend. 173 | N.Y. Sup. Ct. | 1829

By the Court,

Marcy, J.

Several questions arise in this case. Those which it is necessary to consider are the following :

I. Was there the proof that the bill of exchange was regularly protested for non-acceptance ?

II. Was sufficient notice of the protest given to the defendant ?

The custom of merchants requires that there should be a protest in case of the non-acceptance of a foreign bill of exchange; and the proper officer to make this protest is a notary public, unless it is to be made at a place where there is no notary; and then it may be by a substantial person of such place, in presence of two or more wit-' nesses. (Bayley on Bills, 165.) The bill on which this action is brought, does not purport to have been protested by a notary; and there is nothing in the case to shew, nor is it pretended that the protest was made at a place where there was no resident notary; but it is said the bill was duly protested according to the provisions of the commércial code of France. In answer to this, it is contended, on the part of the defendant, that there is no proof that the protest was made pursuant to the provisions of that code, and that if it was so made, it was not a sufficient protest according to the custom of merchants.

As the plaintiffs endeavored to establish their right to recover by shewing a protest, made not in the usual manner recognized by the general commercial law, but, as they alleged, according to the particular code of France, it was incumbent on them to prove that code.

A foreign law, if it be unwritten, is to be proved as a matter of fact, and this is done by examining some intelligent person of the country whose law is to be proved. (2 Starkie’s Ev. 569. 1 Johns. R. 394.) The French commercial code is not an unwritten law, and it could not therefore be established by this mode. It is known to be a digested code, and to prove it the plaintiffs introduced the chancellor of the French consulate at New-York, who produced a book in the French language purporting to contain this code. It was not the official edition of the laws of France, but the witness stated that it was conformable to that edition, and that he regulated his official conduct by the laws contained in the book he produced. He also stated that it was an exact copy of the laws furnished by the French government to its consul at New-York, and the defendant agreed so to consider it. The proof in this case is then, by the agreement of the parties, the book furnished by the French government to its consul at New-York, purporting to be conformable to the official edition published by that government. In the recent case in this court, of Packard v. Hill, (2 Wendell, 411,) it is decided that the written laws of a foreign state must be proved by an exemplification, and cannot be proved by the printed statute book of such state. In that case a printed book, purchased in the Havanna, purporting to contain the royal charter establishing the court of consulado, was declared to be incompetent evidence of that charter. This decision is in conformity to the doctrine laid down by the supreme court of the United States, in the case of Church v. Hubbard, (2 Cranch, 236.) In that case, two edicts of the crown of Portugal were produced, certified by the consul at Lisbon, under his official seal, to be copies of the originals. This was adjudged to he insufficient proof of these edicts. The court gay « The consul was not sworn; he has only certified that they (the edicts) are copies from the originals. To give his certificate the force of testimony, it will be necessary to shew that this is one of those consular functions to which the laws of this country attach full faith and credit. It is further said, that “ though consuls are officers known to the laws of nations, and entrusted with high powers, they have not the power of authenticating the laws of foreign nations. They are not the keepers of those laws. They have no official copies of them.” The book of laws in the possession of the French consul at New-York, is not evidence of the laws of France. Without these laws were proved, there was nothing to shew that the huissier had any authority to protest the bill of exchange on which this suit was brought.

It may be proper to consider the effect of the protest mentioned in this case, on the assumption that it was made pursuant to the commercial code of France. Where the laws of a particular country have designated the officers who are to make protests of bills, and regulated the manner in which it is to be done, protests made by such officers, in the manner prescribed, would undoubtedly be regarded in every other country as valid ; but the court are inclined to the opinion, that as these officers are unknown to the custom of merchants, their acts ought to be authenticated. It would be an innovation, perhaps a dangerous one, to give to the acts of any person who might be authorized to protest foreign bills by a law or regulation of any particular country, the same faith and credit that is given to those of a notary public, whose functions, so far as they relate to commercial transactions, are not created by the laws of any particular state, but by the custom of merchants, which is in fact the commercial law of nations. I am therefore of opinion that the bare production of the papers on the trial, purporting to be the proceedings of the huissier, without authentication, was not sufficient evidence of his performance of the acts stated in them.

To determine whether the defendant had legal notice of the non-ápceptance 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 fourth or fifth 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 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 authoritively 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 sitting before Lord Kenyon, mentioned in Selwyn’s N. P. 320, n. 25. Repeated decisions since, both in term and at nisiprius, 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 on Bills, 229. 2 Campb. 273. 1 Stark. R. 29. Bayley on 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. For the insufficiency of the proof of the French commercial code and of the protest of the bill, and the misdirection of the judge as to the notice, a new trial ought to be granted.

New trial granted.