25 26 states demand at his office or place of business, of his bookkeeper,2 or agent, or clerk, it is evidence that such person was the drawee's agent. But unless the demand was at the drawee's place of business it would be different; and where the protest was legal evidence of the manner of service of notice, it was held, nevertheless, that the certificate that "a notice to D. B. P., the indorser, was left at the residence of J. P. S., his attorney in fact, with a female white servant, the said J. P. S. not being in," was not evidence that S. was P.'s attorney in fact to receive notice, but only of such matters as it was the notary's duty to certify.27 § 965. Recitals in foreign notarial certificate. And so a recital in a foreign notarial certificate, that the notary had served the protest on the acceptor, in his own name, and as agent of the drawer, is no evidence of the agency in a suit against the drawer.28 There is obvious reason in this distinction. When the notary finds a clerk or other person acting as the drawee's representative in his office or place of business, he has a right to presume that he is duly authorized to represent him. Being held out as his clerk or agent, parties may so regard him. But when it is alleged that a mere outside person is an agent, it is an allegation to be sustained by distinct evidence, like any other separate fact. If the certificate state that a bill drawn on a firm was presented to A., one of the members thereof, it is evidence of his membership, upon the same principle that it is evidence as to the identity of an individual to whom presentment is made." When the protest states that notice was sent by mail, it will be presumed that the postage was prepaid.30 29 § 966. Not evidence of collateral facts. But the certificate of protest is not evidence of any collateral facts which may have been stated in it. Thus, if it state that the reason given by the drawee for nonacceptance was, that he had no effects or funds of the drawer, it is no evidence of the want of effects or funds.31 Nor is 24. Phillips v. Poindexter, 18 Ala. 579. 25. Dickerson v. Turner, 12 Ind. 223. 26. Bradley v. Northern Bank, 60 Ala. 259. 27. Drumm v. Bradfute, 18 La. Ann. 681; Hobbs v. Chemical Nat. Bank, 97 Ga. 524, 25 S. W. 348, citing text. 28. Coleman v. Smith, 26 Pa. St. 255. 29. Elliott v. White, 6 Jones, 98. 30. Brooks v. Day, 11 Iowa, 46. 31. Dakin v. Graves, 48 N. H. 45; Dumont v. Pope, 7 Blackf. 367; 1 Parsons on Notes and Bills, 639; Wharton on Evidence, § 123. it evidence that the drawee expressed his willingness to pay in certain bank bills.32 Nor is it evidence of a course of conduct not specified in particular acts. Thus, where the notary stated in the protest that he "made diligent search and inquiry" for the makers, it was considered not proof of that fact, what search and inquiry not being stated.33 This seems to us correct, for what constitutes due diligence is a matter of law, to be adjudicated upon the facts, and is not a matter of notarial judgment and determination.34 § 967. Protest as secondary evidence of notice. Even where there is no statute authorizing it, there may arise circumstances which, upon general principles of the law of evidence, render the protest of a promissory note competent to show due demand and notice. Thus, where the notary who had made the protest had died before the trial, and his testimony could not be procured, the protest of a note, coupled with the deposition of the notary's daughter, as to the uniform habit of her father in his notarial acts, was considered admissible secondary evidence for the purpose of conducing to prove demand and notice.35 So, where the messenger of a bank was dead, his book, in which he entered his acts respecting service of notices, was held admissible to prove that he notified an indorser.36 And in respect to the form of notice, the notary being dead, his clerk's evidence as to the forms he was accustomed to use, is admissible." 37 § 968. When suit is brought in State or country where protest is made, is it evidence? As has been already said, the instrument of protest is only admissible evidence of the facts it asserts in 32. Maccoun v. Atchafalaya Bank, 13 La. 342. 33. Bennett v. Young, 18 Pa. St. 261. In Cockrill v. Loewenstine, 9 Heisk. 206 (1872), the notarial certificate stated that the notary "made diligent search and careful inquiry" to find the maker. The court held that this statement was not prima facie evidence that he did these things. Sneed, J., said: "The question of diligence is a question of law and fact, to be determined by the court and jury, and not to be certified by the notary. The notarial protest by the law and usage of merchants is credited everywhere, and is generally prima facie evidence of the facts it recites; but it must state facts, and not legal conclusions." 34. Cockrill v. Loewenstine, supra. 35. Nicholls v. Webb, 8 Wheat. 450. 36. Welsh v. Barrett, 15 Mass. 380. 37. Wetherall v. Claggett, 28 Md. 465. cases of foreign bills, except where statutory enactment has extended their admissibility in cases of inland bills and promissory notes. And it has been held that it can only be used to prove the dishonor when made in a foreign country; and that if the bill were drawn in a foreign country, and payable in England, and suit were brought in England, the protest should be proved in the same manner as if it were an inland bill.39 For this ruling there is the high authority of Lord Ellenborough, who expressed himself as "quite clear" in the opinion, but no precedent was quoted, and it has been criticised by Story, who considers that if the bill be foreign, the protest should be admitted.40 The United States Supreme Court has intimated its approval of the English precedent quoted; but Story's views seem to us more judicious. Doubtless, the original reason of convenience, which recognized the protest of a bill made in foreign parts as evidence of dishonor, does not apply to a case in which the witnesses are within the country. But protest of all foreign bills is essential, irrespective of the place of payment; and if the holder is required to make the protest, it would seem singular and unequal to deny him the benefit of its production.11 969. Evidence to supply omissions of protest.-When the protest has been made at the proper time and place, and in the proper manner, but does not upon its face make all the statements necessary to prove due demand and notice, parol evidence is admissible to supply the omission, provided it be in furtherance of, and not inconsistent with or contrary to, the statements that are made in the protest. Thus, where the protest stated a demand of the cashier, but omitted to state that the note was in, or the cashier at the bank, it was held admissible to prove these facts by parol testimony.42 So where it did not state where the presentment and demand were made, or that the note was in the bank where it 38. Union Bank v. Hyde, 6 Wheat. 572; Young v. Bryan, 6 Wheat. 146; Sullivan v. Deadman, 19 Ark. 484; Bond v. Bragg, 17 Ill. 69; Sumner v. Bowen, 2 Wis. 524. 39. Chesmer v. Noyes, 4 Campb. 129; Byles on Bills (Sharswood's ed.) [*254], 401; Edwards on Bills, 468. 40. Story on Bills, § 277. 41. Nicholls v. Webb, 8 Wheat. 326. 42. Magoun v. Walker, 49 Me. 420; Seneca County Bank v. Neass, 5 Den. 329; Cook v. Merchants' Nat. Bank of Vicksburg, 72 Miss. 982, 18 So. 481, citing text. 45 44 was made payable, 43 or where it fails to inform the indorser of a demand on the maker and a refusal, or to state the fact of nonpayment, any legitimate extrinsic evidence is admissible to show that any of these facts existed, or steps were taken. And if there be any question as to the agency of the person to whom presentment was made, evidence is admissible to show it.46 In like manner, any defect in the statements respecting notice may be supplied — and, indeed, as we have seen, notice may be proved without any aid from the protest, which is only admissible, and not necessary evidence of it.47 43. Wetherall v. Claggett, 28 Md. 465; Hunter v. Van Bomhorst, 1 Md. 504. 44. Wetherall v. Claggett, 28 Md. 465; Nailor v. Bowie, 3 Md. 252. 45. Sasscer v. Farmers' Bank, 4 Md. 429. 46. Stainback v. Bank of Virginia, 11 Gratt. 269. 47. Graham v. Sangston, 1 Md. 59. See Reynolds v. Appleman, 41 Md. 615. CHAPTER XXIX. NOTICE OF DISHONOR OF NEGOTIABLE INSTRUMENTS. SECTION I. NATURE AND NECESSITY OF NOTICE. 970. When a negotiable bill or note is dishonored by nonacceptance on presentment for acceptance, or by nonpayment at its maturity, it is the duty of the holder to give immediate notice of such dishonor to the drawer, if it be a bill, and to the indorser, whether it be a bill or note. The party primarily liable is not entitled to notice, for it was his duty to have provided for payment of the paper; and the fact that he is maker or acceptor for accommodation does not change the rule.1 Notice is not due to any party to a bill or note not negotiable, the rules of the law merchant concerning notice and protest applying to none but strictly commercial instruments.2 It is regarded as entering as a condition in the contract of the drawer and indorser of a bill, and of the indorser of a note, that he shall only be bound in the event that acceptance or payment is only demanded; and he notified if it is not made. And in default. 1. Hays v. N. W. Bank, 9 Gratt. 127. See § 995. 2. Pitman v. Breckenridge, 3 Gratt. 129. In Early v. Preston, 2 Pat. & H. 229, the following notice was accepted as good in form, and seems in every respect unobjectionable: RICHMOND, August 20, 1842. SIR: Please take notice that a draft drawn by S. H. Davis on Samuel S. Saunders, dated Lynchburg the 18th of February, 1842, for two thousand dollars, at six months' date, and indorsed by Joel Early and Pleasant Preston, and A. Tompkins, Cashier, has been protested for nonpayment by the President and Directors of the Farmers' Bank of Virginia, payment having been refused at the counting-room of S. S. Saunders on the 20th inst., and you are held liable as indorser for all loss, damages, principal, interest, costs, and charges sustained or to be sustained by reason of the nonpayment aforesaid. Yours, ARCHIBALD BLAIR, Citizens' Savings Bank v. Hays, 96 Ky. 365, 29 S. W. 20. |