Wiseman v. Chiappella - 64 U.S. 368 (1859)
U.S. Supreme Court
Wiseman v. Chiappella, 64 U.S. 23 How. 368 368 (1859)
Wiseman v. Chiappella
64 U.S. (23 How.) 368
Where the notarial protest of a bill of exchange stated that the bill had been handed to him on the day it was due, that he went several times to the office of the acceptors of it in order to demand payment for the same, and that at each time he found the doors closed, and "no person there to answer my demand," this was a sufficient demand.
It was not necessary to call individually upon one of the partners of the firm who had a residence in the city or to make any further inquiries for the acceptors than the repeated calls at their office.
Cases can be found, and many of them, in which further inquiries than a call at the place of business of a merchant acceptor have been deemed proper, but the rulings in such cases will be found to have been made on account of some peculiar facts in them which do not exist in this case.
In making a demand for an acceptance, the party ought, if possible, to see the drawee personally or some agent appointed by him to accept it, and diligent inquiry must be made for him if he shall not be found at his house or place of business. But a demand for payment need not be personal, and it will be sufficient if it shall be made at one or the other place in business hours.
The cases upon these points examined.
When, upon presentment for acceptance, the drawee does not happen to be found at his house or counting room, but is temporarily absent, and no one is authorized to give an answer, whether the bill will be accepted or not, in such case it would seem the holder is not bound to consider it as a refusal to accept, but he may wait a reasonable time for the return of the drawee.
He may present the bill on the next day, but this delay is not allowable in a presentment for payment. This must be made on the day the bill falls due, and if there be no one ready at the place to pay the bill, it should be treated as dishonored, and protested.
Presenting a bill under such circumstances at the place of business of the acceptor will be prima facie evidence that it had been done at a proper time of the day. If that shall be denied, it must be shown by evidence.
Where a suit was brought against a notary in Louisiana for negligence in making a protest, he will be protected from responsibility by showing that the protest was made in conformity with the practice and law of Louisiana, where the bill was payable.
This was an action brought by Wiseman against Chiappella, who was a notary public in New Orleans, upon the ground that he had been negligent in protesting a bill of exchange, and in consequence of such negligence Wiseman had lost the money. The question therefore was whether or not he had been guilty of negligence. The question of prescription was also decided by the circuit court, and argued here, but it will not be further noticed.
The facts of the case are stated in the opinion of the Court. The circuit court decided in favor of the defendant upon two grounds: 1st, that the protest was sufficient; 2d, that the action was prescribed.