Tevis v. Randall

6 Cal. 632 | Cal. | 1856

Mr. Justice Heydenfeldt delivered the opinion of the Court.

Mr. Chief Justice Murray and Mr. Justice Terry concurred.

1. The first assignment of error is that the bond is payable to “ The People of the State of California,” whereas it is insisted the Act requires it to be made payable to “ The State of California.” All that is requisite to constitute a good bond on this point, is that it should have a certain obligee, so there be no mistake as to the one to whom the service or duty is owing. Either of the names is descriptive of the same sovereignty, and may be indifferently used, as they are in various statutes.

2. Another objection is as to the form of the condition which requires the notary faithfully to perform the duties of his office.

The Act concerning notaries prescribes no condition for the bond, but it declares he shall be liable on his bond for any misconduct or neglect of duty. It follows that the only condition that could be inserted in the bond is the faithful performance of duty.

3. It is objected that the bond is in form joint, and not joint and several, as the law provides it shall be. But this matter of form was designed more fully to protect the State or those claiming under, and was an additional burden on the obligees, of the lack of which it does not seem right that the obligors should complain. But the 11th section of the Act concerning the bonds of officers, provides against the invalidity of the bond, even where it does not contain the substantial matter required by law. And the right to recover upon such bonds is not limited to any particular class of cases, but is co-extensive with the right to recover upon a regular statutory bond.

4. It is urged that the giving notice is not a notarial duty, and therefore, the failure of the defendant Randall to do so, is no breach of the condition of the bond.

At common law, promissory notes were not protestable securities; they are made so by our Act, and as a consequence, the protest of them must be attended with all the incidents belonging to foreign bills of exchange.

The recital of “ notice given ” in the protest, is made evidence of the fact of notice; the notary is provided with a fee bill for giving- notice; in the face of these enactments it would be difficult to maintain that giving notice was not one of the official duties of the notary.

Judgment affirmed.