By the law merchant, when a demand of payment is made upon the
drawee of a foreign bill of exchange, the bill itself must be
exhibited.
Neither the statutes of Louisiana nor the decisions of the
courts of that state, have changed the law in this respect.
The statutes and decisions examined.
If, therefore, the notarial protest does not set forth the fact
that the bill was presented to the drawee, it cannot be read in
evidence to the jury.
Even if the laws of Louisiana, where the drawee resided, had
made this change in the law merchant, it would not affect the
contract in the present case, which is a suit against an endorser
residing in Mississippi, where the contract between him and all
subsequent endorsees was made, and where the law merchant has not
been changed.
Page 45 U. S. 263
The question which was certified to this Court will be found at
the conclusion of the following statement.
Lake was sued as endorser of the following bill of exchange:
"Vicksburg, 17 December, 1836"
"Exchange for $6,133 00/000."
"Twelve months after first day of February, 1837, of this first
of exchange (second of the same tenor and date unpaid), pay to the
order of R. H. & J. H. Crump six thousand one hundred and
thirty-three dollars, value received, and charge the same to
account of STEELE, JENKINS & Co."
"TO KIRKMAN, ROSSER & CO.,
New Orleans"
"Endorsed:"
"R. H. & J. H. CRUMP"
"W. A. LAKE"
"Kirkman, Rosser & Co., New Orleans, 3d February, 1838 --
protested for nonpayment. A. MAZUREAU,
Not. Pub."
It being admitted that Vicksburg, where said bill bore date, was
in the State of Mississippi, and New Orleans in the State of
Louisiana, the plaintiffs then offered to read in evidence to the
jury, the protest of said bill of exchange, which protest, thus
offered to be read, is in the words and figures following,
to-wit:
"UNITED STATES OF AMERICA,
State of Louisiana:"
"By this public instrument, protest, be it known, that on this
third day of February, in the year one thousand eight hundred and
thirty-eight, at the request of the Union Bank of Louisiana, holder
of the original draft, whereof a true copy is on the reverse hereof
written, I, Adolphe Mazureau, a notary public in and for the city
and parish of New Orleans, State of Louisiana aforesaid, duly
commissioned and sworn, demanded payment of said draft, at the
counting house of the acceptors thereof, and was answered by Mr.
Kirkman that the same could not be paid."
"Whereupon I, the said notary, at the request aforesaid, did
protest, and by these presents do publicly and solemnly protest, as
well against the drawer or maker of the said draft, as against all
others whom it doth or may concern, for all exchange, reexchange,
damages, costs, charges, and interests, suffered or to be suffered
for want of payment the said draft."
"Thus done and protested, in the presence of John Cragg and
Henry Frain, witnesses."
"In testimony whereof, I grant these presents under my
signature,
Page 45 U. S. 264
and the impress of my seal of office, at the City of New
Orleans, on the day and year first herein written."
"A. MAZUREAU,
Notary Public"
The copy of the said bill of exchange, referred to in said
protest, on the reverse side thereof written, is in the words and
figures following, to-wit:
"Vicksburg, 17 December, 1836"
"Exchange for $6,133 00/000."
"Twelve months after the first day of February, 1837, of this
first of exchange (second of same tenor and date unpaid), pay to
the order of R. H. & J. H. Crump six thousand one hundred and
thirty-three dollars, value received, and charge the same to
account of STELLE, JENKINS & Co."
"TO KIRKMAN, ROSSER & CO., New Orleans"
"Endorsed:"
"R. H. & J. H. CRUMP"
"W. A. LAKE"
"WM. NOLL & CO., in liquidation."
But the defendant objected to said protest, and the copy of the
bill on the reverse side thereof written being read in evidence to
the jury, on the ground that it was not stated in said protest that
the notary presented said bill of exchange to the acceptors, or
either of them, or had it in his possession when he demanded
payment of the same.
And that for this alleged defect, which it was insisted could
not be supplied by other proof, the said protest was invalid and
void upon its face, and could not be received as evidence of a
legal presentment of the bill for payment, or of the dishonor of
the bill. And, thereupon, on the question whether the said protest
could be read to the jury, as evidence of a legal presentment of
the bill for payment, or of the dishonor of said bill, the judges
were opposed in opinion. Which is ordered to be certified to the
Supreme Court of the United States for their decision.
"J. McKINLEY [L.S.]"
"J. GHOLSON [L.S.]"
Page 45 U. S. 273
MR. JUSTICE McKINLEY delivered the opinion of the Court.
The plaintiffs brought an action of assumpsit, in the Circuit
Court of the United States for the Southern District of
Mississippi, against the defendant, as endorser of a bill of
exchange, drawn at Vicksburg, in said state, by Steele, Jenkins
& Co., for $6,133, payable twelve months after the first day of
February, 1837, to R. H. & J. H. Crump; and addressed to
Kirkman, Rosser & Co., at New Orleans, and by them afterwards
accepted, and endorsed by the payees and the defendant.
On the trial of the cause, the plaintiffs offered to read as
evidence to the jury a protest of the bill of exchange, to the
reading of which the defendant objected; because it did not appear
in the
Page 45 U. S. 274
protest, that the notary had presented the bill to the
acceptors, or either of them, when he demanded payment thereof. And
upon the question, whether the protest ought to be read to the jury
as evidence of a presentment of the bill to the acceptors for
payment, or as evidence of the dishonor of the bill, the judges
were opposed in opinion. Which division of opinion they ordered to
be certified to this Court; and upon that certificate the question
is now before us for determination.
The endorser of a bill of exchange, whether payable after date
or after sight, undertakes that the drawee will pay it, if the
holder present it to him at maturity and demand payment; and if he
refuse to pay it, and the holder cause it to be protested, and due
notice to be given to the endorser, then he promises to pay it. All
these conditions enter into and make part of the contract between
these parties to a foreign bill of exchange; and the law imposes
the performance of them upon the holder, as conditions precedent to
the liability of the endorser of the bill. A presentment to and
demand of payment must be made of the acceptor personally, at his
place of business or his dwelling. Story on Bills, § 325.
Bankruptcy, insolvency, or even the death of the acceptor will not
excuse the neglect to make due presentment, and in the latter case
it should be made to the personal representatives of the deceased.
Chitty on Bills, 7th London ed. 246, 247; Story on Bills, 360; 5
Taunt. 30; 12 Wend. 439; 2 Douglass 515;
Warrington v.
Furbor, 8 East 245;
Esdaile v. Sowerby, 11 East 117;
14 East 500.
The reasons why presentment should be made to the drawee are,
first, that he may judge of the genuineness of the bill; secondly,
of the right of the holder to receive the contents; and thirdly,
that he may obtain immediate possession of the bill upon paying the
amount. And the acceptor has a right to see that the person
demanding payment has a right to receive it, before he is bound to
answer whether he will pay it or not; for, notwithstanding his
acceptance, it may have passed into other hands before its
maturity. And he, as well as the drawee, has a right to the
possession of the bill, upon paying it, to be used as a voucher in
the settlement of accounts with the drawer. Story on Bills § 361;
Hansard v. Robinson, 7 Barn. & Cressw. 90.
Mr. Justice Story has given the form of a protest now in use in
England, in his treatise on bills of exchange, by which it will be
seen that the words "did exhibit said bill" are used, and a blank
is left to be filled up with "the presentment, and to whom made,
and the reason, if assigned, for nonpayment." Story on Bills, 302,
note. This, with the authorities already referred to, shows that
the protest should set forth the presentment of the bill, the
demand of payment, and the answer of the drawee of acceptor. The
holder of the bill is the proper person to make the presentment
Page 45 U. S. 275
of it for payment or acceptance. Story on Bills § 360. But the
law makes the notary his agent for the purpose of presenting the
bill, and doing whatever the holder is bound to do to fix the
liability of the endorser. Everything, therefore, that he does in
the performance of this duty must appear distinctly in his protest.
He is the officer of a foreign government; the proceeding is
ex
parte, and the evidence contained in the protest is credited
in all foreign courts. Chitty on Bills 215;
Rogers v.
Stephens, 2 T.R. 713;
Brough v. Parkings, 2 Ld.Raym.
993;
Orr v. Maginnis, 7 East 359;
Chesmer v.
Noyes, 4 Camp. 129. The evidence contained in the protest must
therefore stand or fall upon its own merits. It rests upon the same
footing with parol evidence, and if it fails to make full proof of
due diligence on the part of the plaintiff, it must be
rejected.
But the counsel for the plaintiffs insists, that the statute of
Louisiana, and the interpretation given to it by the supreme court
of that state in the case of
Nott's Executor v. Beard, 16
La. 308, have so changed the law merchant, as to render unnecessary
the presentment of a foreign bill for payment. After a careful
examination of the opinion of the court in that case, we are unable
to perceive any intention manifested to depart from the settled
usages of the law merchant; but, on the contrary, they attempt by
argument and authority to bring the case within that law. The
question before that court was the identical question now before
us. The protest was objected to because it did not show that the
bill had been presented by the notary to the acceptors for payment.
To this objection, that court said it might perhaps have been more
specific if in the protest it had been stated that the bill was
presented, and payment thereof demanded. And they admit the law is
well settled that before the holder of an accepted bill can call on
the drawer for payment, he must make a presentment for, or demand
of, payment, and give notice of the refusal. Here, then, is a
definite proposition, asserting that a presentment for payment and
a demand of payment are convertible terms, and that the proof of
either would be sufficient.
To support this proposition, they refer to Chitty on Bills, and
Bayley on Bills, and the annotators on them. And as further proof
and illustration, and to show that
demand of payment
should be preferred to presentment for payment, they refer to the
statute of Louisiana, passed in 1827, in which they say the word
demand is used in it, and that the word
presentment is
not, and they refer to the statute, also, to show that notaries
were vested with certain powers by it, which give authority to
their acts, and that they being public officers, the presumption of
law is that they do their duty, and therefore, if the protest here
defective, and liable to the objection urged against it, this
presumption of law would cover
Page 45 U. S. 276
all such defects. This is substituting presumption for proof, in
violation of all the rules of evidence.
With all due respect for that distinguished tribunal, we are
constrained to dissent from the general proposition they have laid
down on the subject of demand and presentment, and from all their
reasoning in support of it. Due diligence is a question of law, and
we think we have shown, by abundant authority, that the holder of
an accepted bill, to fix the liability of the drawer or endorser,
must present it to the acceptor and demand payment thereof. It may
be well here to repeat what Lord Tenterden, C.J., said on this
subject, in delivering the judgment of the court of King's Bench,
in the case of
Hansard v. Robinson before referred to. He
said
"The general rule of the English law does not allow a suit by
the assignee of a chose in action. The custom of merchants,
considered as part of the law, furnishes in this case an exception
to the general rule. What, then, is the custom in this respect? It
is that the holder of the bill shall present the instrument, at its
maturity, to the acceptor, demand payment of its amount, and, upon
receipt of the money, deliver up the bill. The acceptor paying the
bill has a right to the possession of the instrument for his own
security, and as his voucher, and discharge
pro tanto, in
his account with the drawer. If, upon an offer of payment, the
holder should refuse to deliver up the bill, can it be doubted that
the acceptor might retract his offer or retain his money?"
This extract, we think, furnishes a full answer to all that has
been said by the supreme court of Louisiana to prove that it is not
necessary to present the bill to the acceptor for payment, and to
the presumption of law relied on to cure the defects in the
protest.
But to show that, by the statute of Louisiana, the presentment
of a bill to the acceptor for payment is not dispensed with, and
that the presentment is, by a fair construction of the act, as much
within its true intent and meaning as the demand, we proceed to
examine its provisions. The principal object of the legislature in
passing this statute seems to have been, to give authority to
notaries to give notices, in all cases of protested bills and
promissory notes; and to make their certificates evidence of such
notices. And therefore all that is said on the subject of the
demand and the manner of making it, and the other circumstances
attending it, was not intended as a new enactment on these
subjects, but as inducement to the powers conferred on the notary,
which was the principal object of the statute, as will appear, we
think, by reading it. That part of it which relates to this subject
is in these words:
"That all notaries, and persons acting as such, are authorized,
in their protests of bills of exchange, promissory notes, and
orders for the payment of money, to make mention of the demand made
upon the drawee, acceptor, or person on whom such
Page 45 U. S. 277
order or bill of exchange is drawn or given, and of the manner
and circumstances of such demand; and by certificate, added to such
protest, to state the manner in which any notices of protest to
drawers, endorsers, or other persons interested were served or
forwarded, and whenever they shall have so done, a certified copy
of such protest and certificate shall be evidence of all the
notices therein stated."
It seems to have been taken for granted by the legislature, that
the notaries knew how to make out a protest, and therefore they did
not prescribe the form, but gave the substance of it, to which the
notary was required to add a certificate of the manner in which he
had given notices, and when done, according to the statute, a
certified copy of the protest and certificate should be evidence
not of the demand and manner and circumstances of the demand, but
of the notice only. This shows that the intention of the
legislature, in passing this part of the statute, was merely to
authorize the notaries to give notices, and to make the copy of the
protest, and the certificate added to it, evidence of notice in the
courts of Louisiana. But independent of this view of the subject,
we think the language employed in this statute includes the
presentment of the bill for payment, and for all other purposes, as
fully as it does the demand of payment. In giving construction to
the act, the phrase, "and of the manner and circumstances of such
demand," cannot be rejected, but must receive a fair
interpretation. When taken in connection with other parts of the
statute, what do these words mean? The manner of making a demand of
payment, we have seen, is by presenting the bill to the drawee or
acceptor, and so important is this part of the proceeding that the
omission to present the bill to the acceptor will justify his
refusal to pay it, although payment be demanded. The legislature
cannot be presumed to have intended to make so important a change
in the law merchant as that ascribed to them by the counsel for the
plaintiffs, without at the same time providing some other mode of
obtaining the acceptance and payment of bills of exchange, and of
holding drawers and endorsers to their liabilities. It is but
reasonable, therefore, to give to the phrase before referred to
such construction, if practicable, as will leave the law merchant
as it stood before the passage of the statute, and carry into
effect the main intention of the legislature. This, we think, may
fairly be done without doing any violence to the intention or the
language of the statute.
The
manner of the demand must, therefore, mean the
presentment of the bill for either acceptance or payment; and
the circumstances of the demand, we think, means the place
where the presentment and demand is made, and the person to whom or
of whom it is made, and the answer made by such person. It is very
clear, that bills payable at sight, and after sight, are within
the
Page 45 U. S. 278
meaning of the statute; because it provides for a demand of
payment of the acceptor of a bill. Now how can there be an acceptor
of a bill, without a presentment for acceptance? Until the bill
become due, payment cannot be demanded of the drawee. This shows
that without the word presentment and the word demand also, the
plain meaning of the statute could not be carried into effect. A
bill payable at a fixed period after its date need not be presented
for acceptance; it is sufficient to present it and demand payment
when it arrives at maturity, but a bill payable at sight or after
sight can never become due until after it has been accepted. How is
the holder or the notary to obtain the acceptance of such a bill,
under the decision of the Supreme Court of Louisiana? Will it be
sufficient to demand payment of the bill? That would be a nugatory
act, because it is not due; then it must be admitted that, by fair
and necessary construction, the word "presentment" is within the
plain meaning and intention of the statute, and that the bill may
be presented for acceptance or for payment, and therefore neither
the statute nor the decision of the Supreme Court of Louisiana has
changed the law merchant in any of these respects.
There is, however, another question, entirely independent of the
statute and the decision of the Supreme Court of Louisiana, which
may be decisive of the case before this Court, and that question is
whether the contract between the holder and endorser of the bill in
controversy is to be governed by the law of Louisiana, where the
bill was payable, or by the law of Mississippi, where it was drawn
and endorsed. The place where the contract is to be performed is to
govern the liabilities of the person who has undertaken to perform
it. The acceptors resided at New Orleans; they became parties to
the bill by accepting it there. So far, therefore, as their
liabilities were concerned, they were governed by the law of
Louisiana. But the drawers and endorsers resided in Mississippi;
the bill was drawn and endorsed there, and their liabilities, if
any, accrued there. The undertaking of the defendant was, as before
stated, that the drawers should pay the bill, and that if the
holder, after using due diligence, failed to obtain payment from
them, he would pay it, with interest and damages. This part of the
contract was, by the agreement of the parties, to be performed in
Mississippi, where the suit was brought, and is now depending. The
construction of the contract, and the diligence necessary to be
used by the plaintiffs to entitle them to a recovery, must
therefore be governed by the laws of the latter state. Story on
Bills § 366;
29 U. S. 4 Pet.
123; 2 Kent's Common. 459; 13 Mass. 4; 12 Wend. 439; Story on Bills
§ 76; 4 Johns. 119; 12 Johns. 142; 5 East 124; 3 Mass. 81; 3 Cowen
154; 1 Cowen 107;
9 U. S. 5 Cranch
298.
Page 45 U. S. 279
Whatever, therefore, may have been the intention of the
legislature in passing the statute, and of the Supreme Court of
Louisiana in the decision of the case referred to, neither can
affect, in the slightest degree, the case before us. In
Mississippi, the custom of merchants has been adopted as part of
the common law, and by that law and their statute law, this case
must be governed. We think, therefore, the protest offered by the
plaintiff, as evidence to the jury, ought not to have been received
as evidence of presentment of the bill to the acceptors for
payment, nor as evidence of the dishonor of the bill, which is
ordered to be certified to the circuit court accordingly.
MR. JUSTICE McLEAN.
I think the protest was evidence. The notary made demand of
payment, at the maturity of the bill, and we know that he had
possession of the bill, from the fact of the protest being made on
the same day. Now as the notary could not make a legal demand in
the absence of the bill, the fair, if not the necessary, inference
is that he had possession of the bill when he demanded payment.
MR. JUSTICE WOODBURY.
I regret being compelled to dissent from a portion of the
opinion of the majority of the Court which has just been
pronounced. This I should be content to do without explanation, if
the grounds for it did not a pear to be misunderstood. I do not
question that a note should be present usually when payment is
demanded,
Freeman v. Boynton, 7 Mass. 483; 17 Mass. 449; 3
Metcalf 495, and that a written protest is the proper evidence to
show a presentment or demand in the case of a foreign bill of
exchange,
21 U. S. 8
Wheat. 333;
Burke v.
McKay, 2 How. 71. But in my view, a protest like
this was competent evidence to be submitted to the jury, in order
that they might infer from it that the note was presented when the
demand was made. That was the point presented by the division of
opinion between the judges in the court below. One held it was
competent evidence from which to make such an inference, and the
other, it was not, and we are merely to decide which was right.
The question of due presentment and demand is a mixed one of law
and fact, and not one of mere law, unless all the facts are first
conceded or agreed,
United States v. J. Barker, 1 Paine's
C.C. 156. This is in analogy to the rule about notice,
26 U. S. 1 Pet.
583. In all cases where it is possible for the jury on any
reasonable hypothesis to infer a proper presentment from the
protest offered, it is safer that the writing should not be
withdrawn from them, but go in, and the court instruct the jury on
the whole evidence what the law was on such facts as they might be
satisfied of. Chancellor Kent, 3 Comm. 107, thinks it very
difficult, in these mixed questions of law and fact about
commercial paper, to do
Page 45 U. S. 280
justice by any other course. In this case, the jury might or
might not be satisfied of the fact of the bill being present when
the demand was made. But why not let them pass on that fact? It is
manifest that no evil or danger would result from leaving the
matter to them, under due instructions from the court, provided
there be no legal obstacle to such a course.
Is there, then, any such obstacle?
It is conceded, on both sides, that the protest is competent
evidence, and contains enough from which the jury could infer a
demand of payment. That is the most material part of the notary's
duty. It is not only so described in some elementary treatises, but
the duty of having the note present, or of calling with it at the
hours of business alone, are not described separately; but are
involved or implied in the general duty of making a demand. Thus
Dane, in his Abridgment,
Bills of Exchange, art. 11, § 1,
says -- "In making a protest, three things are to be done -- the
noting, demanding, and drawing up the protest." "The material part
is the making of the demand." So the word demand is at times used
as synonymous with the word "presentment" by Bailey. 16 La.
311.
But the protest in this case states not only a demand, but that
payment of the bill was refused, and that he had it in possession,
so as to make a copy "of the original draft" on the back of the
protest, or, to use his own words, "whereof a true copy is on the
reverse hereof written," and also "demanded payment of said draft,"
and was answered, "that the same could not be paid."
Under these expressions, it could hardly be deemed unfair or any
stretch of probability to infer that the bill was present at the
demand, and the more especially as the notary knew it was his duty
to have it present, and does not state that any objection was made,
or refusal to pay, on account of its absence, as he should have
stated, if such was the truth. My views do not differ from those of
a majority of this Court concerning the importance of having the
principles as to commercial law, and especially commercial
instruments, uniform, and as little fluctuating as possible, and
hence as to them I would make no innovation here. But our
difference is rather on a question of evidence. Thus, had the
testimony offered been submitted to the jury, and they had inferred
from it a due presentment of the note, it would not change any
commercial principle as to the necessity of presentment, but merely
establish the fact of presentment here on evidence deemed by the
jury to render that fact probable. And if juries should be disposed
to find such a fact on slight testimony, it would do no injury to
commercial paper, or commercial principles, or substantial justice
between parties, but merely indicate an increased liberality as to
forms, where substance has been regarded; that is, where the vital
point in the transaction is beyond controversy, namely, that
payment has clearly
Page 45 U. S. 281
been demanded and not made. Such a course would accord also, in
spirit, with that was laid down by this Court in
26 U. S. 1 Pet.
583, that rules as to commercial paper ought to be formed and
construed so as to be reasonable and founded in general convenience
and with a view to clog as little as possible, consistently with
the safety of parties, the circulation of paper of this
description.
There is nothing in the nature of protests and presentments
which on principle requires any increased strictness in the proof
of them, but, on the contrary, much to justify every reasonable
presumption in their favor. Any holder would be anxious to get his
money at once of the drawee, and not neglect to have the note with
him so as to give it up on payment and prevent delay. So would he
wish to be paid and excused entirely from making protest, rather
than resort to that and notice, and suffer the delay of recovering
it of a drawer or endorser.
Both of these considerations strengthen the inference that he
and his agent would present the note, or have it with them, when
demanding payment, and render it reasonable, after slight proof of
presentment, to leave it to the opposite party to rebut that
inference, so natural, by stronger proof that the note was not
present, if the facts would warrant such proof.
Another consideration against requiring great or greater
rigidity in the evidence of a presentment and form of protest is
the fact, that a protest is of less materiality than notice.
As an illustration, that the notice is deemed more material than
the protest, "omitting to allege in the declaration a
protest of a bill is only form, not to be taken advantage
of on a general demurrer." 1 Dane's Abr.,
Bills of
Exchange, ch. 20, art. 11, § 9; Lill.Ent. 55; 3 Johns. 202;
Salomons v. Staveley, Doug. 684, in note to
Rushton v.
Aspinall.
But, omitting to state a demand or
notice is bad after
verdict. Doug. 684.
Dane, in his Abridgment, vol. 1, 395, ch. 20, art. 10, § 1, says
-- "Notice is very material. Protests are mere matter of form." Yet
notice may be very loose, and it answers in all cases, if it
disclose merely the fact of
demand, and a reliance on the
person notified for payment.
Shed v. Brett, 1 Pick. 401;
Miller v. Bank of United
States, 11 Wheat. 431;
Gilbert v. Dennis,
3 Metc. 495; 2 Johns.Ch. 337; 12 Mass. 6; 4 Wash.C.C. 464.
"The notice, however, should inform the party to whom it is
addressed, either in express terms or by necessary implication, or,
at all events, by
reasonable intendment, what the bill or
note is that it has become due, that it has been duly
presented to the drawer or maker, and that payment has
been refused."
Chitty on Bills (9th Lond. & 10th Amer. edit) 469.
But it has again and again been held, that the notice need
not
Page 45 U. S. 282
state a presentment in express terms, and that it will be
implied from stating a demand and nonpayment, and a looking to the
endorser.
34 U. S. 9 Pet. 33;
3 Kent's Comm. 108; 10 Mass. 1; 4 Mason 336; 1 Johns.Cas. 107. So,
"Your note has been returned dishonored," is enough from which to
intend all.
See various other illustrations, 6 Adolph.
& Ellis 499; 5 Dowl. 771; 2 Chit. 364; 2 Mees. & Welsb.
109.
It may be a letter -- merely to that effect -- and need not be a
copy of the protest. 1 Chit. (2d Eng. & 1st Amer. edit) 363,
364, 498, 499; 3 Camp. 334; 2 Starkie 232;
Goodwin v.
Harley, 4 Adolph. & Ellis 520, 870; 4 Eq. 48.
See
8 Mass. 386. And it has been adjudged, that the notice need not
state, in express terms, that the note was present, or if present
was exhibited, if it only contained matter from which, by
reasonable intendment, this can be inferred. Chitty on
Bills (last edit) 469;
27 U. S. 2 Pet.
254;
34 U. S. 9 Pet.
33.
It not being necessary, then, to inform the endorser of the
presentment of the note itself, in so many words, there seems to be
no use in having the fact stated at length in the protest, if
enough appear to render the fact probable.
It would be difficult to find a reason, in the absence of
positive law, why the form of the protest should not be dealt by as
liberally as that of notice, and if, like the other, it disclose a
demand, allow the jury to infer from that, as in the case of
notice, that the note was present. Indeed, a protest is not
required to be in writing at all except in case of foreign bills,
drawn on persons abroad. 1 Chitty on Bills, 643;
Rogers v.
Stevens, 2 D. & E. 713; 2 Starkie on Ev. 232;
19 U. S. 6 Wheat.
572;
21 U. S. 8
Wheat. 333; 3 Wend. 173;
27 U. S. 2 Pet.
179. And then it doubtless originated in a rule merely allowing it
to be done to save the expense and trouble of bringing a witness
from abroad to prove the fact, rather than making it
imperative.
Instead of a written protest being better evidence than a
witness of the presentment and demand in case of inland bills or
promissory notes, or even foreign bills drawn on persons here, it
is inferior evidence to witnesses for proving presentment and
demand, and is usually inadmissible, except by special statutes. 1
Chitty on Bills, 405; 3 Pick. 415;
19 U. S. 6 Wheat.
572; 5 Johns. 375; 4 Wash.C.C. 148; 4 Camp. 129;
43 U. S. 2 How.
71.
Some seem to suppose that there is danger in allowing an
informal written protest to go to the jury as evidence to be
weighed in proving that the note was present. But there can be no
more in that than in allowing an informal notice to go to the jury.
The jury must be satisfied, in both cases, and should so be
instructed, that all has been done which the law in both requires.
If there be any defense in either case, that all proper has not
been done, it can
Page 45 U. S. 283
probably be shown by counter evidence in one as well as the
other. Why should it not be? and why is not that an ample security
against being improperly charged? For the protest is not a written
contract between the parties, or a sealed instrument not open to be
contradicted by parol evidence. But it is a mere certificate of a
notary, a subordinate officer, admitted for convenience as
prima facie evidence of certain facts, and allowed to that
extent in order to save the expense of witnesses and delays, but
ought to be always open to be impaired or disproved by the other
party in interest, who has never been heard before him, and of
course cannot reasonably be concluded forever by his acts. The
notary is not required to swear to them, when they are admissible
as evidence, as he would be to a deposition, because of his
official obligations and standing. But the character and
construction that properly belong to his certificate as evidence
seem to be like those of a deposition; and if it states, in so many
words, that the note was presented, or states what justifies such
an inference, there appears to be no good reason why the contrary
may not be proved, if such was the fact, and the endorser be thus
protected against statements or inferences not well founded. And
the absurdity of the contrary course is still more apparent as to
protests, when one made by any respectable merchant, and attested
by two witnesses, in the absence of a notary, has the same validity
as his. Chitty on Bills 303; Story on Bills § 276.
In
Nicholls v.
Webb, 8 Wheat. 336, counter testimony was held to
be admissible against the minutes of a notary offered to prove
demand and notice.
So is it admissible, that the notary mistook the place, and did
not demand the bill at the place of business for the drawee.
Insurance Company v. Shamburgh, 2 Martin's (N. S) 513.
In
Vandewall v. Tyrrell, Mood. & Malk. 87, counter
evidence was offered, and avoided the protest, because the clerk of
the notary, and not the notary himself, as stated in the protest,
made the demand.
See Chitty on Bills 495, note.
This point thus being established on both principle and
precedent, all the danger or difficulty as to the merits of the
case, by admitting a protest like this, is obviated. But it is
further urged against it, that presentment is averred in the
declaration, and therefore must be proved. This we admit. Chitty on
Bills 643-647. And so is notice averred in the declaration and
notice of a presentment, and so that must be proved. 1 Chit. 633;
Doug. 654, 680. All we urge here is to let them be proved by
similar general statements, from which the similar inferences may
be drawn in one case as the other, that the note was present at the
time of the demand, unless the contrary is shown -- as it may be,
if true.
Again, it is said that the forms of protest generally state,
that the bill was present or exhibited. This is true. 1 Chitty
Page 45 U. S. 284
395, 396 (1st Amer. edit); Story on Bills of Exchange, § 276,
note.
But we are aware of no case deciding that this fact must be
stated, in so many words, in the protest itself, though we admit
that the jury must be satisfied that the fact existed. Minutes in
the book of a messenger deceased have been held to be proof to be
submitted to a jury as evidence of due demand and notice.
Welsh
v. Barrett, 15 Mass. 380. Yet there does not appear to have
been a presentment stated,
eo nomine, or that there was
any but inferential evidence that he had the note with him.
See
also North Bank v. Abbott, 13 Pick. 469. And it is not a
little remarkable, that the only statute in England, 9 and 10 Will.
3, which prescribes the form of a protest, and which is in relation
to inland bills of five pounds and upwards, in order to recover
damages and interest, the form does not state in so many words that
the bill was present or was exhibited, but merely "at the usual
place of abode of the said A. have demanded payment of the bill,"
&c., Chitty on Bills 465 (9th ed). In such cases, precisely
that and that alone must be done which is contended for here --
namely leave it to the jury to infer the presence of the bill from
its payment being demanded, and any other facts stated, unless the
contrary is shown. Look at another analogy. It is necessary that
the exhibit of the note and the demand be made in the legal hours
of business. Chitty on Bills, 349, 354;
Ruben v. Bennet, 2
Taunt. 388; 2 Camp. 537;
Parker v. Gordon, 7 East 385; 1
Maul. & Selw. 20. But, as in respect to the presence of the
note, no case holds that this must appear by so many words in the
protest. And it is not stated, in the common forms, that the demand
was made in the usual hours of business. 1 Chitty on Bills 396. On
the contrary, the jury are allowed or instructed that they may
infer, from the statement of the demand and nonpayment, that they
were made within the proper hours. And if it was not, the other
party would doubtless be allowed to disprove it by counter
evidence.
How can such a case, then, be distinguished in principle from
this, except that there is much less in the usual form of protest
from which to infer that the bill was presented in legal hours than
there is in this protest from which to infer that the bill was
present when the demand was made. I am the more inclined, also, to
the opinion, that this protest is competent evidence, because,
under a special law in Louisiana, passed March 13, 1827, such
protests have been adjudged sufficient. Their law uses the word
"demand" when describing what the protest shall contain, and such a
protest is there allowed to go to the jury as evidence from which
in infer that the note was present.
Nott's Executor v.
Beard, 16 La. 308.
The bill now in dispute was on its face payable in Louisiana,
and hence the principles of commercial law require that the
protest
Page 45 U. S. 285
be made at the time and in the manner prescribed by that state.
Story on Bills of Exchange § 176; 1 Chitty on Bills 193, 506;
Story's Conflict of Laws § 360.
But whether the statute of Louisiana prescribing what protest
shall be sufficient ought to be considered as affecting anything
beyond the evidence of protest in its own courts is not very clear
on principle.
See cases, Story on Bills § 172.
Hence, in forming an opinion, I have placed it mainly on general
considerations, though in the construction of a Louisiana statute,
which clearly affected the contract, and not the evidence; and
where the judgment of its court clearly rested on the statute
alone, about which some doubt exists, it ought unquestionably to
control us in respect to contracts made or to be fulfilled there,
even if a departure from the general principles of commercial law.
I wish, also, to avert some serious consequences that I apprehend
may result from the decision of the majority of the Court in
several of the states of the Union.
Bills of exchange drawn in one state on persons in another must
be considered, under the previous decisions of this Court, as
foreign bills.
Townsley v.
Sumrall, 2 Pet. 179,
27 U. S. 586;
Lonsdale v. Brown, 4 Wash.C.C. 87, 153; 1 Hill 44; 12
Pick. 283; 15 Wend. 527; 5 Johns. 375;
Dickins v.
Beal, 10 Pet. 579. Demand of payment, then, cannot
be proved in suits upon them out of the state where presented,
unless by a written protest, according to the cases before
cited.
Whenever the protest, then, in such case, does not state in
detail a presentment or presence of the bill, though stating a
demand, refusal, and no objection, the protest must, as in this
decision, be ruled out as incompetent evidence, and the same
decision virtually implies, that no other evidence except the
written protest is admissible to show that fact, or indeed any fact
which may be omitted by accident or otherwise in the written
protest, and that no inference can be admitted to be drawn from the
protest as to presentment, when only a demand, refusal, and no
objection are stated, as here. These consequences, with others
before named, I would avoid, by making the protest competent
evidence, and when it showed a demand, refusal, and no objection
explicitly, as here, would leave it to the jury, from that and the
other circumstances, to say whether they were or were not satisfied
that the note was present.
In this way it is easy to reconcile full action of the jury on
the facts with that of the court on the law, and this, too, without
any innovation or change in the rule as to commercial paper, or any
violation of adjudged cases, but rather in conformity to them and
to several strong analogies.
This Court has in other cases gone still farther, and held it
proper even to expand or enlarge the rules of evidence in certain
exigencies. In
Nicholls v.
Webb, 8 Wheat. 332, the principle laid
Page 45 U. S. 286
down by Lord Ellenborough in
Pritt v. Fairclough, 3
Camp. 305, as to the rules of evidence, was adopted -- namely,
"That they must expand according to the exigencies of society." And
in
Bank of Columbia v.
Lawrence, 1 Pet. 583, speaking of a rule as to
diligence, Thompson, J., says -- "For the sake of general
convenience it has been found necessary to enlarge this rule."
But all I ask here is to go as far as the existing rules of
evidence seem to justify, and let reasonable inferences and
presumptions be made by the jury from all that is stated in the
protest, and thus decide whether the note was not probably present
when the demand was made.