Commercial Bank v. Barksdale

| Mo. | Oct 15, 1865

Holmes, Judge,

delivered the opinion of the court.

The decision of the case turns mainly upon the validity of the protest. The bill is to be considered as a foreign bill. (Sto. Bills, §§ 22-3.) In cases of foreign bills of exchange, the rule is too well settled to admit of question, that there must be a protest of the bill by a notary public, in all places where such officer is at hand. (Sto. Bills, § 276.) The notarial protest is evidence of presentment, demand, and refusal to pay the bill, at the time and in the manner therein stated. This rule of the law merchant is recognized by statute in this State (R. C. 1855, p. 298, § 20) ; and so essential is the production of a protest in all cases of foreign bills, that this evidence of presentment, demand and refusal cannot be dispensed with, nor supplied by other' evidence of the same facts, as may be done in cases of inland bills. (Sto. Bills, § .276.) It is equally well established that the presentment and demand must be made in person by the same notary who protests the bill; it cannot be done by a clerk, nor by any other person as his agent, though he be also a notary. The protest is to be evidence of the facts stated in it, of which the notary is supposed to have personal knowledge, and credit is given to his official statements by the commercial world on the faith of his public and official character.

In court, the instrument speaks as a witness. Such statements made merely upon the information of another person would amount to hearsay only, if the notary were himself upon the stand as a witness. The notarial protest must state facts known to the person who makes it, and he cannot delegate his official character or his functions to another. (Edw. on B. 466 ; Leftly v. Mills, 4 T. R. 174; Carmichael v. Bank of Penn., 4 How., Miss. 567; Sarcider v. Brown, 3 McLean, 481; Onondagua Co. Bank v. Bates, 3 Hill. 53; Chenoweth v. Chamberlain, 6 B. Mon. 60" court="Ky. Ct. App." date_filed="1845-09-24" href="https://app.midpage.ai/document/chenowith--co-v-chamberlin-7128640?utm_source=webapp" opinion_id="7128640">6 B. Mon. 60.) The presentment and protest are governed by the law of the place where the bill is payable, and on this principle it has been held that where the statute law of the State (as in Louisiana) authorizes notaries to appoint deputies, a protest made by such deputy, duly appointed, would be recognized as sufficient. (Caster v. Brown, 7 Humph. 548.) But no case seems to have gone farther than this: such deputy may be considered as having a semi-official character, and sufficient authority by force of the statute; but without some change in the general rule of law, one notary can neither delegate his functions nor impart his own official character to another. Here, two notaries were in partnership in general business, and one of them undertook to present the bill and make the demand, and the other to draw up the protest and give the notice. They were both notaries, but as such they were distinct public officers, and there can be no partnership in such matters. No law or custom was proved to have existed in the State or city of New York, which changes the general rule of the law merchant on this subject. It must follow that the protest made by Yarnum can have no validity; nor will that made by Turney any more avail. It seems to be clearly established by the general current of authority that the protest must be made on the same day with the presentment and demand, though a noting of the protest on the bill itself may be regarded as an incipient protest, or preliminary step towards a protest which may be completed afterwards, at any time, by drawing up the protest in form. Here, there was no noting of the bill for protest, nor any memorandum marked on the bill, by Turney; nor is there any proof of any distinct note, entry, or memorandum of protest, made by him on that day, in any other way than upon the bill itself. It would appear that he did not make the demand for the purpose of protesting the bill himself, but as the agent of his partner, the other notary. He neither protested the .bill, nor noted it for protest, at the time; and his drawing up of a protest, long afterwards, must be regarded as having no basis of contemporaneous fact or present authority, and as being entirely void. (Byles, Bills, 201-203; Sto. Bills, § 283; Leftly v. Mills, 4 T. R. 174.)

Under the laws of New York we think the presentment was made, and the notice sent, on the right day (Loller v. Burt, 20 Wend. 205" court="N.Y. Sup. Ct." date_filed="1838-10-15" href="https://app.midpage.ai/document/salter-v-burt-5515178?utm_source=webapp" opinion_id="5515178">20 Wend. 205); but there being no valid protest, the drawers and endorser were discharged, so far as their liability depended upon a protest and notice; and it will therefore be. immaterial to inquire further concerning the notices that were sent.

It is urged on the part of the plaintiff, that the drawers were not entitled to notice, for the reason that they had no funds in the hands of the drawee, and no right to draw the bill. It appeared in evidence that there had been extensive previous dealings between the parties; that within the three or four months next preceding the drawing of the bill, there had been transactions of this kind to the amount of upwards of six hundred thousand dollars ; that they had on deposit with the bank as collaterals an amount of bonds and other securities largely exceeding their indebtedness to the bank, this bill included; that a fluctuating balance remained unsettled between them ; and that down to the time of the dishonor of this bill, the bills drawn upon the bank had been duly honored. These securities were soon afterwards withdrawn upon a settlement of the comparatively small balance due from them to the bank. There does not appear to have been any express agreement for a credit to any given amount; but on the footing of this previous course of dealing, and these ample securities, the drawers may very reasonably have counted upon a prompt payment as usual. At any rate, it cannot be said that they had absolutely no funds in the hands of the drawee, no right to draw the bill, and no reasonable expectation that it would be paid. In such case, the drawee is entitled to notice, that he may take measures to close his account and withdraw his securities. (Edwds. Bills, 451; Blackman v. Doren, 2 Camp. 503 ; Orr v. Maginnis, 7 East. 359; Rucker v. Hiller, 16 East. 43 ; Campbell v. Pettingell, 7 Greenl. 126; French v. Bank of Columbia 4 Cranch, 141" court="SCOTUS" date_filed="1807-02-23" href="https://app.midpage.ai/document/frenchs-v-bank-of-columbia-84844?utm_source=webapp" opinion_id="84844">4 Cranch, 141; Robinson v. Ames, 20 J. R. 146.) No iostruc|;ioi\S' were 'asked, or given, directly bearing on .this subject. The case seems to have been tried upon the admitted theory that the drawers were entitled to a protest and notice. The evidence on this, head was amply sufficient to warrant the instructions which were given, so far as they rested on this basis ; and the verdict being for the defendants, we cannot say that it was, in this respect, either without evidence, or against the weight of evidence: on all other points, also, the law appears to have been fairly and correotly laid down in the instructions which were given on either side; and in those refused for the plaintiff, we have not found any substantial error.

The judgment is affirmed.

Judge Wagner concurs

; Judge Lovelace absent.