Ocean National Bank v. Williams

102 Mass. 141 | Mass. | 1869

Ames, J.

The draft declared upon, having been drawn by a person residing in this state upon persons residing in another state, is a foreign bill; and, in order to charge the drawer, it is necessary to show that it was duly and regularly protested for nonpayment. The fact of nonpayment, in such a- case, can only be proved by protest, and cannot be supplied by witnesses, or in any other way. Phœnix Bank v. Hussey, 12 Pick. 483. Buckner v. Finley, 2 Pet. 586. In this case, there seems to be no competent evidence of this essential fact. There.is nothing on the face of the report, or in the terms of the notarial certificate, to indicate that the notary personally presented the draft for payment. It is true, he certifies that it was duly presented and payment demanded ; but the report finds that the presentment and demand were made by the notary’s clerk, and not by the notary himself, and that no other presentment or demand were in fact made. But it is well settled that,, by the common law and according to the uniform practice of this Commonwealth, the duties of a notary must be performed by himself personally, and not by a clerk or deputy. Cribbs v. Adams, 13 Gray, 597. No attempt was made at the trial to show that the general rule of law upon this point has been modified by any local statute of the state of New York; and, in the absence of all evidence to the contrary, we must presume the general commercial law of that state to be the same substantially with our own. The plain■iff wholly failed to prove the existence of any well settled local isage in New York, that would authorize a notary in the case of a foreign bill to make a presentment and demand of payment by his clerk or deputy, and to certify and authenticate notarial acts so performed, in the same manner as if he had performed them himself. The witnesses who testify that it is customary in the city of New York for the clerks of notaries to present and demand payment of drafts, and for notaries to protest upon such presentment and demand, wholly fail to give any information upon the point whether that custom applies to and includes the case of foreign bills. One of them says that his attention had never been called to that distinction, and the other makes no allusion to it. It hardly need be said that a local usage, in derogation of the general rules of law,, requires clearer and better evidence of its existence and validity.

Judgment on the verdict.