36 Mo. 563 | Mo. | 1865
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.) 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
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; Robinson v. Ames, 20 J. R. 146.) No iostruc|;ioi\S' were 'asked, or given, directly bearing on .this
The judgment is affirmed.
; Judge Lovelace absent.