Cookendorfer v. Preston,
45 U.S. 317 (1846)

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U.S. Supreme Court

Cookendorfer v. Preston, 45 U.S. 4 How. 317 317 (1846)

Cookendorfer v. Preston

45 U.S. (4 How.) 317


In an action brought by the endorsee against the endorser of a promissory note which had been deposited in a bank for collection, the notary public who made the protest is a competent witness, although he has given bond to the bank for the faithful performance of his duty.

He is also competent to testify as to his usual practice.

The cases reported in 22 U. S. 9 Wheat. 582, 24 U. S. 11 Wheat. 430, and 26 U. S. 1 Pet. 25, reviewed.

At the time when these decisions were made, it was the usage in the City of Washington to allow four days of grace upon notes discounted by banks, and also upon notes merely deposited for collection.

But since then, the usage has been changed as to notes deposited for collection, and been made to conform to the general law merchant, which allows only three days of grace.

Although evidence is not admissible to show that usage was in fact different from that which it was established to be by judicial decisions, yet it may be shown that it was subsequently changed.

The case was this.

On 17 May, 1839, E. T. Arguelles gave the following note.

"$300 Washington, May 17, 1839"

"On the first day of February next, I promise to pay to Thomas Cookendorfer or order three hundred dollars for value received, negotiable and payable at the Bank of Washington."

"[Signed] E. T. ARGUELLES"



This note was deposited in the Bank of Washington, for collection. Not being paid at maturity by the drawer, it was protested

Page 45 U. S. 318

under the circumstances and in the manner stated in the bill of exceptions.

In February, 1842, a suit was brought by Preston, the endorsee, against Cookendorfer, the endorser, which resulted in a verdict and judgment for the plaintiff.

The following bill of exceptions shows the points of law which were raised and ruled at the trial.

"Memorandum. Before the jurors aforesaid retired from the bar of the court here, the said defendant, by his attorney aforesaid, filed in court here the following bill of exceptions, to-wit:"

"Defendant's Bill of Exceptions"


"On the trial of this cause, the handwriting of the maker and endorser of the note in the declaration mentioned was admitted, and the plaintiff, to maintain the issue on his part joined, offered George Sweeny, who was admitted to be a notary public for the County of Washington, District of Columbia, lawfully commissioned and sworn, and by him they offered to prove that he, as such notary, was required by the Bank of Washington (who then held the said note for collection) to demand payment of the note mentioned in the declaration, and the said note was delivered to him by the said bank, and he did thereupon, on 4 February, 1840, present the said note at the said bank and did demand payment thereof at the said bank, and he was answered by the proper officer of the bank 'that there were no funds there for it'; that he, the said notary, did, on the next day, to-wit, 5 February, 1840, deliver to the defendant a notice in writing, which notice being now produced to the witness by the defendant, is in the words and figures following:"

"Notice of 5 February, 1840"

"Washington, February 5, 1840"

" SIR: A note drawn by E. T. Arguelles, dated the 17 May, 1839, for three hundred dollars, payable at 1-4 February, 1840, due, and by you endorsed, and for which you are accountable to the President and Directors of the Bank of Washington, has been this day protested for nonpayment."

"Your obedient servant,"

"GEORGE SWEENEY, Notary Public"


"And he did, also, on the 5 February, 1840, extend and record in his notarial register the protest of the said note, which is in the words and figures following: "

Page 45 U. S. 319


"$300 WASHINGTON, May 17, 1839"

" On the first day of February next I promise to pay to Thomas Cookendorfer or order three hundred dollars for value received, negotiable and payable at the Bank of Washington."

" [Signed] E. T. ARGUELLES"



"DISTRICT OF COLUMBIA, Washington County, sct."

" Be it known that on 4 February, 1840, I, George Sweeny, notary public, by lawful authority duly commissioned and sworn, dwelling in the county and district aforesaid, at the request of the president and directors of the Bank of Washington, presented at the said bank the original note, whereof the above is a true copy, and demanded there payment of the sum of money in the said note specified, whereunto I was answered -- 'There are no funds here for it.'"

" Therefore I, the said notary, at the request aforesaid, have protested and by these presents do solemnly protest against the drawer and endorser of the said note and all others whom it doth or may concern for all costs, exchange, reexchange, charges, damages, and interests suffered and to be suffered for want of payment thereof."

" In testimony whereof I have hereunto set my hand and affixed my seal notarial, this 5 February, 1840."

"GEORGE SWEENY, Notary Public"

" Protesting, $1.75"

" Recorded in protest book G.S. No. 3, page ___ ."

"And the said witness further testified that he copied the form of the said notice from a form used by Michael Nourse, one of the oldest notaries in the city and largely employed as notary, and that he made the demand and gave the notice in this case according to his usual practice, and that his said practice conformed, so far as he knows and believes, to the practice of the other notaries in the City of Washington."

"And the plaintiff offered further evidence tending to prove the said practice of said notaries to be according to the statement made by Mr. Sweeny, and that the usual practice was, when a notice was to be sent abroad, to put it into the post office, and date it on the third or last day of grace, but when the notices were to be delivered in the City of Washington, a latitude was allowed to the notary either to deliver the notice on the third or last day of grace or the day after the last day, and in all cases to date the notice on the day of its delivery, and the usage is to extend the protest on the day on which the notice is given, as in this case, stating the demand

Page 45 U. S. 320

to have been made on the last day of grace, and the protest to be dated the same day on which the notice is dated."

"And the said George Sweeny, on cross-examination, testified that he usually acted on behalf of the said Bank of Washington, at its request, as the notary in regard to notes and bills in said bank, and that he had given a bond, with security, to said bank, in the penal sum of $10,000, for the faithful performance of his duty as notary public in regard to said business, and that the note in controversy had been deposited by plaintiff in said bank for collection."

"And the counsel for the defendant objected to the admissibility and competency of said George Sweeny as a witness, and the court overruled the said objection and permitted the said Sweeny to be sworn and to testify as aforesaid to the jury, to which the defendant, by his counsel, excepted and prayed the court to seal this bill of exceptions, which is done accordingly."

"And the said counsel for the defendant further objected to the admissibility and competency of the said testimony upon the subject of the practice and usage spoken of by the witness, but the court overruled the objection and suffered the said testimony to go to the jury, whereupon the said counsel excepted."

"And the said counsel for the defendant thereupon moved the court to instruct the jury that the said evidence was not sufficient, if believed to be true, to show that payment of said note had been duly demanded and refused and that due notice of such dishonor had been given to defendant so as to bind him."

"But the court refused to give such instruction."

"To each of which rulings of the court, in permitting the evidence as aforesaid to go to the jury, in refusing the instruction as prayed, the defendant, by his counsel, excepts and prays the court to seal this bill of exceptions, which is accordingly done this 7 April, 1843."



Page 45 U. S. 324

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