51 How. Pr. 371 | New York Court of Common Pleas | 1876
The first question to be considered upon this appeal is the sufficiency of the proof of the demand and protest of the draft, and this depends upon the question as to whether the design of the notarial seal printed on the certificate of protest is such a seal as would authorize the reading in evidence of the certificate of protest without further proof. It was not contended, upon the argument of this appeal, that the certificate of protest could be received in evidence unless sealed by the notary.
The whole course of legislation in this State shows that, in the absence of statutory provisions, a mere impression upon paper was not considered as a sufficient seal. In 1815, the Legislature enacted “ that the impression of the seal of any court by stamp should be a sufficient sealing in all eases where sealing is required.” In 1822, the Legislature also provided “ that it should be lawful for certain State officers to affix the proper seal by making an impression directly on the paper, which should be as valid as if made on a wafer or on wax.” In 1848, it further enacted “ that in all cases where a seal of any court or of any public officer shall be authorized or required by law, the same may be affixed by making an impression directly on the paper, as if made on a wafer or on wax; ” but the Legislature further says, that the foregoing provision “ shall not extend to private seals, which shall be made as heretofore on wafer, wax, or some similar substance.” In the same year it was enacted that the seal of any corporation authorized or required by law, “ may be affixed by making an impression directly upon the paper, which shall be as valid as if made on a wafer or on wax.”
The clear import of these enactments is to authorize the impression of the seal immediately upon the paper, without the intervention of any wafer, wax, or other similar substance; and that, prior to these enactments, it was necessary to the validity of the seal, that it should be impressed upon wafer, wax, or some other similar substance. The impression of the seal can be made directly upon the paper only when the design of the seal is impressed upon the paper itself, and does not require any other substance to exhibit it. In the case now under considera
Various authorities have been- cited by the counsel for the respective parties, but none of the cases seem to have any application to the question now under consideration, except the cases of The Bank of Rochester v. Gray (2 Hill, 221) and Ross v. Bedell (5 Duer, 462), and these cases sustain the view which I have already suggested.
It seems, therefore, that it was error to admit the certificate of protest, it not being under seal; and the judgment must be reversed, unless the defendant is bound by the promise which he made to pay after the maturity of the draft.
Parsons on Notes and Bills (vol. I, p. 595) lays down the rule “ that a promise to pay after maturity, with full knowledge of laches, is binding upon the party promising, without further proof of demand, protest, or notice ; ” and, at p. 601, he says, “ a mere promise to pay is not sufficient. The plaintiff in each ■case must go further and prove knowledge on the part of the party promising of the facts.”
The certificate of protest being excluded from consideration because of the want of a proper seal, there is no evidence in the case that the draft was ever presented for acceptance, or protested for non-acceptance. In considering, therefore, the defendant’s promise to pay, we must, therefore, assume that the case is presented without any attempt to prove a demand or protest. A failure to make' a demand would undoubtedly be laches upon- the part of the plaintiffs, and a knowledge of such laches must be had by the defendant at the time of making the promise, in order that it should be binding. The evidence in this case shows not only that the defendant had no knowledge of the failure of the plaintiffs to make a demand, but, on the contrary thereof, the promise was made at a time when he supposed that a proper demand and protest of the draft had been made, and that a proper notice thereof was being given to him. It is clear, therefore, that the defendant had not full knowledge
The judgment must be reversed, and a new trial ordered, with costs to abide the event.
Bobinson, J., concurred.
Judgment reversed.
