1. Judicial notice is taken of the seal of a notary public, and
such seal, impressed upon either the paper or the wax thereunto
attached, entitles his certificate of protest to full faith and
credit. So
held where, in an action against the drawer of
a foreign bill of exchange payable in Norway, such a certificate
made in that country was, when put in evidence by the payee,
accepted as proof of the presentment and nonpayment of the
bill.
2. The question as to whether the presentment was made in due
time is determined by the law of the place where the bill is
payable.
3. The deposition of a lawyer of Norway, to the effect that the
holder of such a bill payable there at eight is allowed a year
after its date within which to present it for payment, was, by the
court below, properly admitted under the statute of Minnesota,
which provides that the existence, tenor, and effect of all foreign
laws may be proved by parol evidence, bat that the court may, in
its discretion, when the law in question is contained in a written
statute, reject such evidence, unless it be accompanied by a copy
thereof.
This is an action by the plaintiff in the court below, Ole A.
Indseth, against the defendants, composing the firm of Pierce,
Simmons & Co., on a foreign bill of exchange, payable at sight
to his order, drawn by them at Red Wing, in Minnesota, on the
Christiania Bank, in Norway, which is as follows:
"
Exchange 15,441 50/100 kroner, per stamp
2c."
"PIERCE, SIMMONS & Co., BANKERS"
"RED WING, MINNESOTA, February 1, 1877"
"At sight of this original of exchange (duplicate unpaid) pay to
the order of O. A. Indseth 15,441 50/100 kroner, value received,
and charge same to account of Sk. P. I. & Co., Chicago, as per
advice from them."
"PIERCE, SIMMONS & CO."
"To Christiania Bank of Kredit Kasse, Christania, Norway"
The value of these kroners in our money was $4,469.35.
Indseth resided at the time near Eidsvold, in Norway, and the
bill was purchased by his agent in Minnesota, who forwarded it to
him. He received it February 27, 1877, and retained it in his
possession until April 12 following, when he presented it to the
bank for payment, which was refused. He then caused the bill to be
protested by a notary of Norway for nonpayment.
Page 106 U. S. 547
The drawers were notified of its nonpayment by letter from the
plaintiff, which they received at Red Wing as early as May 15,
1877, and also by the original certificate of protest of the
notary, which, with a translation, was at that time shown to one of
them by the agent of the plaintiff, to whom the document was sent
for that purpose.
It appears from the findings of the court below that the drawers
had no money to their credit with the Christiania bank when the
bill was drawn, but depended for its acceptance and payment upon
advices to the bank by Skow, Peterson, Isberg & Co., bankers at
Chicago. That firm failed and made an assignment on the 21st of
March, 1877. It had, however, from February 28 to that date,
inclusive, to its credit with the bank, money sufficient to pay the
bill, but no portion of it had been set apart for that purpose, and
it has been since paid to the assignee of the firm. On the 15th of
February, 1877, the drawers wrote to the payee a letter stating
that, fearing their draft might not be paid, they had caused a
cable dispatch to be sent to Christiania directing payment, but
there was no evidence that the bank received such a dispatch, if
sent, or gave them any credit on it.
Eidsvold at or near which the plaintiff resided, is distant
about fifty miles from Christiania, the place where the bank was
situated, and between them there was daily communication by mail
and by railway.
In proof of the presentment of the bill to the bank and the
latter's refusal to pay the same, a copy of the notary's
certificate of protest was given in evidence by the plaintiff, the
defendants having stipulated for the admission of a copy with the
like effect as the original, which was needed elsewhere.
Subsequently the defendants themselves produced the original for
the purpose of showing its character, insisting at the time, that
it had no authenticity as the act of the notary, and was not
therefore competent evidence of the presentation and nonpayment of
the bill.
To meet the objection of unnecessary delay in presenting the
bill the plaintiff gave in evidence, against the objection of the
defendants, the deposition of a lawyer of Norway as to the law of
that country respecting the presentation of bills of
Page 106 U. S. 548
exchange for payment. Exception was taken to the ruling of the
court in its admission. It appeared, from the deposition, that by
the law of Norway, the holder of a foreign bill of exchange,
payable at sight, is allowed a year after its date within which to
present it to the drawee for payment, and that the drawer is not
relieved from liability, if the presentation be not made within the
year, unless he can prove that owing to the delay he has suffered a
loss in his accounts with the drawee.
Evidence was offered by the defendants to show that the
plaintiff, himself, had admitted his negligence in presenting the
bill, but on objection of counsel it was excluded, to which ruling
an exception was taken.
The court found in favor of the plaintiff for the full amount of
the bill, and judgment having been entered on the finding, the case
was brought to this Court for review.
MR. JUSTICE FIELD delivered the opinion of the Court, and after
stating the case as above, proceeded as follows:
The certificate of the protest of the bill of exchange by the
notary in Norway was properly received in evidence. It is in due
form, and bears what purports to be the seal of the notary. The
seal, it is true, is impressed directly on the paper by a die with
which ink was used. This is evident from inspection of the
original, which has been transmitted to us from the court below for
our personal examination.
The use of wax or some other adhesive substance upon which the
seal of a public officer may be impressed has long since ceased to
be regarded as important. It is enough, in the absence of positive
law prescribing otherwise, that the impress of the seal is made
upon the paper itself in such a manner as to be readily identified
upon inspection.
The language used in
Pillow v.
Roberts, reported in 13 How. 472, as the
sufficiency of a seal of court impressed upon paper instead of wax
or a wafer, is applicable here. Said the Court, speaking by Mr.
Justice Grier:
"Formerly wax was the most convenient and the only material used
to receive and retain the impression of a seal. Hence, it was said:
Sigillum
Page 106 U. S. 549
est cera impressa; quia cera, sine impressione non est
sigillum. But this is not an allegation that an impression
without wax is not a seal, and for this reason courts have held
that an impression made on wafers or other adhesive substances
capable of receiving an impression, will come within the definition
of '
cera impressa.' If, then, wax be construed to be
merely a general term, including within it any substance capable of
receiving and retaining the impression of a seal, we cannot
perceive why paper, if it have that capacity, should not as well be
included in the category. The simple and powerful machine now used
to impress public seals does not require any soft or adhesive
substance to receive or retain their impression. The impression
made by such a power on paper is as well defined, as durable, and
less likely to be destroyed or defaced by vermin, accident, or
intention than that made on wax. It is the seal which
authenticates, and not the substance on which it is impressed, and
where the court can recognize its identity, they should not be
called upon to analyze the material which exhibits it."
Here there is no difficulty in identifying the seal. The
impression, which is circular in form, has within its rim the
words, "Notarial Seal, Christiania." Besides, the court will take
judicial notice of the seals of notaries public, for they are
officers recognized by the commercial law of the world. We thus
recognize the seal to the document in question as that of the
notary in Norway, and as such authenticating the certificate of
protest and entitling it to full faith and credit. Greenleaf's
Evid., sec. 5; Story on Bills, sec. 277;
Townsley
v. Sumrall, 2 Pet. 170;
Chanoine v.
Fowler, 3 Wend. (N.Y.) 173;
Holliday v. McDougal, 20
Wend. 81.
Carter v. Burley, 9 N.H. 558.
The certificate being admitted, proved the presentation of the
bill to the bank on the 12th of April, 1870, and its nonpayment.
That this presentation was made within the period allowed by the
law of Norway appears from the deposition of a lawyer of that
country, taken under a commission from the court. That law allowed
a year after the issue of the bill for its presentation, and on the
question of timely presentation the law of the place where a
foreign bill of exchange is payable
Page 106 U. S. 550
governs, and not the law of the place where it is drawn. In
giving a bill upon a person in a foreign country, the drawer is
deemed to act with reference to the law of that country, and to
accept such conditions as it provides with respect to the
presentment of the bill for acceptance and payment. Thus, where
days of grace on bills are different in the two countries, the rule
of the place of payment must be followed. In England and the United
States, three days of grace are usually allowed; in France, there
are none, and in some places the number of days varies from three
to thirty. Whatever is required by law to be done at the place upon
which the bill is drawn, to constitute a sufficient presentment
either in time or manner, must be done according to that law, and
whatever time is permitted within which the presentment may be made
by that law, the holder may take without losing his rights upon the
drawer, in case the bill is not paid. So, also, if the bill be
dishonored, the protest by the notary must be made according to the
laws of the place. It sometimes happens that the several parties to
a bill, as drawers or endorsers, reside in different countries, and
much embarrassment might arise in such cases if the protest was
required to conform to the laws of each of the countries. One
protest is sufficient, and that must be in accordance with the laws
of the place where the bill is payable.
In this case, the bill having been protested, the drawers were
notified of its dishonor by letter from the payee, received by them
on the 15th of May following, and also by personal delivery at
about the same time of the original certificate of the protest,
with a translation of it into English, to one of the drawers by an
agent of the payee, to whom they were transmitted for that purpose.
No question is made that this notice was not sufficient to charge
the drawers.
The testimony of the lawyer of Norway as to the law of that
country was admissible under the statute of Minnesota, which
provides that
"the existence and the tenor or effect of all foreign laws may
be proved as facts by parol evidence, but if it appears that the
law in question is contained in a written statute or code, the
court may, in its discretion, reject any evidence of such law that
is not accompanied by a copy thereof. "
Page 106 U. S. 551
The general rule as to the proof of foreign laws is that the law
which is written -- that is, statute law -- must be proved by a
copy properly authenticated, and that the unwritten law must be
proved by the testimony of experts -- that is, by those acquainted
with the law.
Ennis v.
Smith, 14 How. 400. But this rule may be varied by
statute, and that of Minnesota leaves it to the discretion of the
judge to require the production of a copy of the written law when
the fact appears that the law in question is in writing. The
discretion of the judge here was not improperly exercised, even if
in such case his action would be the subject of review, as
contended by counsel.
The admission of the payee that he had been negligent in
presenting the bill was properly excluded. His negligence in that
respect could not have affected his legal rights, if in point of
fact the bill was presented within the time allowed by the laws of
Norway.
We have thus far assumed that the drawers were entitled to
notice of the presentation and nonpayment of the bill. But it may
be doubted whether such was the fact. They had no funds with the
bank in Norway when the bill was drawn or at any other time, and
they relied for its payment upon the advices of third parties.
Although such third parties had funds at the bank after the bill
had been received by the payee in Norway, there is no evidence that
they ever advised the bank to pay the bill out of such funds. It is
found by the court that the bank never set apart any portion of
them to meet the bill. The cable dispatch of the drawers, of which
the letter of February 15 speaks, if it ever reached the bank, does
not appear to have induced it to give them any credit. In the most
favorable view therefore which could be taken of the position of
the drawers, we see nothing which relieves them from liability.
Judgment affirmed.
