Crowley v. Barry

4 Gill 194 | Md. | 1846

Archer, C. J.,

delivered the opinion of this court.

This, (No. 10, the first appeal,) is a suit by the endorsee of a note against the endorser and payee, and the question arising on the first bill of exceptions is, whether the maker of the note is a competent witness for tire plaintiff, to prove the execution of the note by himself an’d partner, as makers, and the endorsement by the defendant? The witness was answerable, in any possible event of the suit, for the amount of the note, and could therefore have ho interest in its event. He may, indeed, be considered as testifying against his interest, for if the plaintiff should recover, he would he answerable to the defendant for the costs of this suit. It has accordingly been often adjudged, that in the like circumstances the maker of a note is a competent witness. 1 Greenl. Ev., 430, note 2, and authorities there cited.

The only question raised in the second exception is, whether the protest offered, was evidence' to prove demand and notice?

By the act of 183?, ch. 253, relating to promissory notes and bills' of exchange, a protest by a notary public, duly made, shall ha prima facie evidence, in the case of inland and foreign bills, of non-payment or non-acceptance, and of presentment for payment and acceptance, at the time and in the manner stated in tlie protest; and the act further declares, that when such protest shall state, that notice of such non-payment or non-acceptance has been sent or delivered to the party or parties to such note or' bill, and the manner of such notice, such protest shall b a prima facie evidence, that such notice has been sent or delivered in the manner therein stated. The design of this act of the legislature, as to the mode of proof, of demand and notice, was to place for'eign and inland bills upon the same footing, and as regarded inland bills and notes, to dispense with the necessity of adducing oral proof of demand and notice, by substituting therefor the protest of the notary, duly made. And as in the case of foreign hills, the protest of a notary, duly authenticated by his seal, was, before the act, received as proof of these facts, we should not be carrying out the intention of the law makers, unless we also received the certificate of the notary, authenticated by his seal, as proof of the demand and notice stated therein. The act, in its terms, is too imperative to admit of any doubt. When the protest, or an authenticated copy thereof, is offered in evidence, it must be received on the footing of the lex fori, 2 Hill N. Y. Rep., 230; and the only enquiry, therefore, would seem to be, whether the protest has been duly made? This enquiry involves two considerations, its form, and its mode of authentication. To its form, no available objections could be urged; in substance, it states a demand on the drawer, and notice of non-payment. As to its mode of authentication, it is sufficient that we can perceive a seal to be attached thereto. No proof is necessary, that the seal attached is the notary’s seal, or that the handwriting signed thereto, is the proper signature of the notary. Much ingenious reasoning has been urged before the court, to establish the invalidity of the protest, offered in evidence, upon the ground, that the seal of the notary does not contain the inscriptions pointed out by the act of 1801, ch. 86, sec. 7. Without determining whether this would be important or necessary, had the protest been made by an officer of this State, it is only necessary to say, that the protest was made beyond the limits of the State, by a notary, in no manner bound to provide a seal of the peculiar designation, which might be required for our own officers. In 2 Hill, 228, the certificate of the notary was rejected, because it had, according to the common law, no seal attached to it, and because there was no proof of the law of the State where the protest was made, that it was sufficiently authenticated. But we could not reject this protest upon the ground urged, without, at the same time, subjecting all protests, wheresoever made, of even foreign bills, to the same rule.

But it is further urged, that the protest is inadmissible and insufficient to prove demand and notice, upon the ground that notice was not sent to the defendant at his nearest post office. The notice was sent to Upper Marlborough, to which office it is in proof, that the defendant had directed the witness to send him letters; at which place, it is proven, he had an agent, who would deliver letters there ariving to him. It is also proven, that he received several letters at a post office four miles nearer his residence. The defendant had, therefore, from the proof, two post offices, to either of which it would have been sufficient to have sent the notice of protest; he could not say that due diligence had not been, used, when letters were sent to the post office where the defendant had directed letters from his copartner to be sent, and from which direction, it is reasonable to presume, he would, having an agent in the town, more readily and speedily receive them, than if sent to the post office nearest to him.

The third exception raises the question, whether a demand ought to have been made on both the drawers of the note, who were partners, and who had dissolved their partnership, and given notice of such dissolution in a paper printed in the city of Washington 9 It might be sufficient to say, that this dissolution had, by no evidence in the cause, been brought home to the knowledge of the holder of the note. But we do not desire to determine the question on this ground, because we are clearly of opinion, that a demand on one of the partners was sufficient, as each partner represents the partnership. Before a dissolution, it clearly would not be necessary to make a demand on both; Story Prom. No., 285, nor could it be necessary after a dissolution, as the partnership, as to all antecedent transactions, continues until they are closed.

The above views dispose of all the questions presented for our consideration in the appeal No. 10, and in No. 6, the second appeal; except the questions arising on the fifth and sixth exceptions in No. 6.

We cannot perceive that the introduction of the agreement, between Sasscer, Wall, Dixon and Crowley, into the case, (by which the latter undertook to pay certain liabilities of Sasscer and Wall, among the rest the note in controversy,) should exclude Sasscer from being a witness. If Sasscer was compelled to pay the amount of the note, his remedy against Crowley, the defendant, would be by an action on the agreement, just adverted to. By paying the judgment, the witness would not be entitled to an assignment of the judgment, as his relation to the plaintiff in such judgment was that of a principal, and not a security for Crowley.

The only variance alleged in the sixth exception, to which we need advert, is, that the nar alleges the note upon which the suit was brought, to have been “made at the county aforesaid,” when the note shows, that it bore date at the city of Washington; and it is insisted, that the declaration should have averred, that the note “was made at the city of Washington, to wit, at the county aforesaid.” In Robert vs. Harnage, 2 Lord Ray, 1043, a bond dated at Fort St. Davids, in the East Indies, was declared upon as a bond made at London. It was decided, that there was a variance. The same decision was made in Mostyn vs. Fabrigas, Cowp., 176. These decisions appear to have been followed in New York and Massachusetts. 13 John. Rep., 450. 5 Pick., 412. There have, however, been contradictory decisions. In Houriet, et al., vs. Morris, 3 Campb., 303, it was decided, that the contract evidenced by a promissory note is transitory, and the place where it purports to be made is immaterial, and it was held to be no variance; and the same doctrine is laid down in 1 Stephen's N. P., 773, 774. But that when the place of payment was stated in the body of the note, it made a material part of the instrument. Roche vs. Campb., 3 Camp. N. P., 248. Chitty, in his forms of pleading, adopts the doctrine of Lord Ellenborough, and his forms conform to those decisions. 2 Chitty's Plead., 115, 116, 117, 118; 9 Am. Ed. In Chitty on Bills, 582, 9th American edition, the decision in 3rd Camp, is referred to; and it is there said, that inland bills, although they bear date at a particular place, may be alleged to have been made anywhere in England or Wales. Bailey on Bills, 380, is cited by Chitty for this position. In bills drawn and payable in countries where the currency differs from our own, there is much reason for maintaining, that it was necessary to aver the place where the bill was drawn; accordingly, it has been decided, that where a bill was drawn in Dublin in Ireland, for Irish currency, and the declaration stated, that the bill was drawn at Dublin, to wit, at Westminster, &c., without alleging that Dublin was in Ireland, nor stating the bill to be for Irish currency, there was a variance, inasmuch as the bill must be taken to be drawn for English currency. 2 Barr, and Ald., 301. But Mr. Chitty intimates, that a different decision might be made since the act assimilating the currency between Great Britain and Ireland. 1 Chit. Plead., 581.

In this conflict of authority, we feel ourselves justified in adopting as a rule, that authority which occurs to us as the most reasonable. In 13 John., 450, although the court say, they might feel themselves bound by the cases, yet they intimate that their opinions were against the position, that such an allegation was a variance. The place where a note is dated is clearly immaterial; and if it be conceded, that in inland bills, no matter where dated, the allegation may be made, that such bill was made in any county where the suit is brought, it is difficult to perceive a reason, why in a foreign bill the same principle should not prevail, unless in consequence of the difference of currency between the currency of the country where the bill is drawn, and where it is sued upon, should render the true statement of the date necessary, to avoid a variance.

We arc of opinion, there is no variance, and believe the court below were right in their decision on the sixth bill of exceptions.

The result of the above views is, that the decision of the court, in both appeals, should be affirmed.

JUDGMENT AFFIRMED.