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ception in case of a payment supra protest for the honour of a party to the bill. There is no doubt that in such case there must be a declaration formally made before a notary, to give to the payment the quality of a payment for honour. There was a substantial omission of that declaration in Vandewall v. Tyrrell, Mood. & Malk. 87, 22 Eng. Com. Law Rep. 258. And the decision proceeded on that ground. 10 Com. Bench (J. Scott) 710. It is not regarded as preventing the general rule as to the time when the formal protest may be drawn up being applied to a case in which the bill was in fact duly protested, and the declaration that the payment was made for honour duly made before the notary. Geralopulo v. Weller, 10 Com. Bench (1 J. Scott) 712, 70 Eng. Com. Law Rep. 712, 3 Eng. Law & Eq. 515.
8. What facts should be set forth in the protest as to the dishonour; how far the protest or a copy of it is generally proof of those facts.
The protest of a bill should set forth the presentment, the demand of payment, and the answer of the drawee or acceptor. Nott's ex'or v. Beard, 16 Louis. 311, Musson v. Lake, 4 How. 274. The seal of office annexed by the notary to his certificate of the protest, is judicially taken notice of, Mullen v. Morris, 2 Barr 86; and the certificate under such seal is received in all courts as evidence of the protest in a foreign state, without any auxiliary support. Nelson, J. 15 Wend. 531; Lloyd v. McGarr, 3 Barr 482.
The want of a seal may sometimes be supplied. In place of a protest under such seal, there may be produced a sworn copy of it by the notary. Such evidence was admitted in Lloyd v. McGarr, as the best the nature of the case admitted of the notary testified that at the time of the protest he was a notary public, duly commissioned; that his term of office had expired; that no successor to him had been or could be appointed; and that the laws of the state gave him no authority to certify any document under his former notarial seal.
A court may, however, decline receiving other evidence of a protest than the protest itself, or a copy of it, except where the original and the record have been lost or destroyed. Chase v. Taylor, 4 Har. & Johus. 61.
The protest of a foreign bill, under a notarial seal, is prima facie, but not conclusive, evidence of the facts which it states as to the dishonour of the bill, to wit-the presentment, demand, refusal and protest; but these facts may be controverted by other evidence. Nelson v. Fotterall, 7 Leigh 180; Dickens
v. Beal, 10 Peters 582.
This rule applies to a bill drawn in one state on a person residing in another; for such a bill is a foreign bill. Townsley v. Sumrall, 2 Peters 170; Halliday v. McDougall &c. 20 Wend. 1; ante, p. 148. And since the protest is, to this extent, evidence of dishonour in the case of a foreign bill, it is, in like manner, evidence of dishonour in the case of any such promissory note, check, or inland bill, as is mentioned in the 7th section of chapter 144, of the Code of Virginia.
9. Notary's certificate, when founded on the acts of others, of less weight than when founded on his own act.
How far the duties of the office of notary can be performed by a clerk or deputy, is a question on which there was intimated, in the 7th edition of Chitty on Bills 217, an opinion, which led to the correspondence between Mr. Chitty and an association of notaries at Liverpool, that is given at large in the 8th edi. p. 493. It is a question on which the court of appeals of Virginia pronounced in the case of Nelson v. Fotterall, 7 Leigh 179, cited ante, p. 147, and on which decisions have been made in other states.
The court of appeals of Kentucky, considering that the effect of the notary's action in this respect must be determined by the local law under which he acts, has sustained such action, where it took place at New Orleans, and the evidence shewed it to be in conformity with well established custom and usage among the notaries there, the propriety of which had been sanctioned by judicial and professional opinions. McClane v. Fitch &c. 4 B. Monroe 600.
In a subsequent case, in which there was no proof of the existence of such custom, but in which there was proof by a witness that the presentment for payment was made, not by the notary himself, but by his clerk, the court held that there could be no recovery against the endorser. Chenowith & Co. v. Chamberlin, 6 B. Monroe 61.
If the notary's certificate state that he caused presentment to be made, the inference may be drawn that the presentment was by his clerk or some third person, as otherwise the phraseology would probably have been direct that he (the officer) made presentment, &c. The supreme court of New York, approving Mr. Chitty's opinion, refused to admit as evidence such a certificate; considering it to be a certificate as to facts of which the notary, impliedly at least, conceded, on the face of the instrument he had no personal or official knowledge. Onandaga Co. Bank v. Bates, 3 Hill 56.
OF NOTICE OF DISHONOUR; HOW GIVEN AND PROVED; HOW PROOF OF NOTICE DISPENSED WITH ON PROOF OF PROMISE TO PAY.
1. Notice to drawer of bill dispensed with where bill is accepted for his accommodation.
By the law of England, it was once a universal, and is still a general rule, that it is necessary to give, or use due diligence to give, notice of dishonour to other parties on the non-acceptance of a bill, or non-payment of a bill or note, by the drawee or maker. 16 M. & W. 748.
The first innovation on this rule was that made or recognized in Bickerdike v. Bollman, 1 T. R. 410, holding notice to the drawer not necessary if he had no effects in the drawee's hands from the time the bill was drawn till it became due; for, said Buller, J., if he had none, he had no right to draw and to expect payment; nor can he be injured by the non-payment or the want of notice. There was no difference in this respect between an inland and a foreign bill. Rogers v. Stephens, 2 T. R. 713. When in the case of a foreign bill it was thus ascertained to be unnecessary to prove notice, it was equally unnecessary to prove protest. Legge v. 1 horpe, 2 Camp. 310, 12 East 171.
The doctrine was carried no farther than this, that there need not be notice or protest where the drawer has no effects, and has no fair pretence for drawing, or where he draws without having effects intended to be applied in payment, and only for the purpose of raising money by discount for himself or the acceptor; which last was the case in Walwyn v. St Quintin, 1 Bos. & Pul. 654.
It was not long before the English judges gave expression to preference for the old rule, and regret that it had been broken in upon. Clegg v. Colton, 3 Bos. & Pul. 211. Lord Ellenborough declared his determination to resist the farther extension of the exemption, Orr &c. v. Maginnis, 7 East 361; saying, he met with continual instances of inconvenience resulting in practice from it. 2 Camp. 310, 12 East 176. He conceived the whole period must be looked to from the drawing of the bill till it becomes due, and that notice is requisite if the drawer has effects in the hands of the drawee at any time during that interval. Hammond &c. v. Dufrene, 3
Camp. 145; Thackray v. Blackett, Id. 164.
Still he would not go counter to the rule established in Bickerdike v. BollIf a bill was drawn without any funds in hand at the time of drawing, applicable to it, or any ground of reasonable expectation that when the bill became due the drawee would come forward and pay it, he and his associates in the king's bench held that notice must be given. Claridge v. Dalton, 4 M. & S. 226.
The case of Walwyn v. St. Quintin has indeed been considered inconsistent with Brown v. Maffey, 15 East 216, and is disapproved in Cory &c. v. Scott, 3 Barn. & Ald. 619, 5 Eng. Com. Law Rep. 402; it being considered in this last case that want of notice might produce injury to the drawer; there being parties against whom, if he paid the bill, he ought to have remedy over.
But the English courts still acknowledge that they are bound by Bickerdike v. Bollman, 16 M. & W. 748. It is an excepted case, the principle of which is not to be extended. The drawer is entitled to notice if he have reasonable ground to expect the bill will be paid, although he have no assets in the acceptor's hands. Rucker v. Hill, 16 East 43; Lafitte v. Slatter, 6 Bingh. 623, 19 Eng. Com. Law Rep. 181. And, perhaps, Bickerdike v. Bollman, applies only where the bill has been accepted for the accommodation of the drawer, who, in such case, if he knew that the acceptor had no assets, can incur no damage from want of notice. Tindal, C. J. S. C.
When the drawer, with his own hand, makes the bill payable at his own house, that has been deemed evidence of its being an accommodation acceptance, for the payment of which he is to provide at maturity; and an endorsee has maintained an action against him without proving notice of dishonour. Sharp v. Bailey, 9 Barn. & Cress. 44, 17 Eng. Com. Law Rep. 329.
It is considered that the same reason applies to want of presentment as to want of notice of dishonour, and that as to both the same rule ought to prevail with respect to want of effects operating as an excuse. The drawer cannot object either the want of presentment or the want of notice when he is in no respect prejudiced by the want of either, having no remedy against any other party on the bill. Terry &c. v. Parker, 6 Adol. & El. 502, 33 Eng. Com. Law Rep. 129.
In the U. States, the subject has been frequently discussed. French's ex'x v. Bank of Columbia, 4 Cranch 154; Hopkirk v. Page, 2 Brock. 24; Stanto &c. v. Blossom &c. 14 Mass. 116; Dickins v. Beal, 10 Peters 577; Rhett v. Poe, 2 How. 479. In N. York, the supreme court has decided one case on the au
thority of Bickerdike v. Bollman, Hoffman &c. v. Smith, 1 Caines' Rep. 157, and in another recognized the rule as laid down by Lord Ellenborough in Claridge v. Dalton, 4 M. & S. 229, that notice must be given the drawer if the bill was drawn under such circumstances as induced him to entertain a reasonable expectation that the bill would be accepted and paid. Robinson v. Ames, 20 Johns. 150. In a case in Maryland, of checks drawn on a public banking institution, by a party whose funds in the bank fell far short of his checks, the court entertained no doubt that the party knew when he drew the checks that they would be dishonoured, and never at any subsequent period had reason to expect that they would be paid by the bank, and could not, therefore, set up as a defence the want of notice. Eichelberger v. Finley, 7 Har. & J. 387. Notice was also dispensed with in Cathell v. Goodwin, 1 Har. & Gill 470; Spear &c. v. Atkinson, 1 Iredell 263; Wollenweber v. Ketterlinus, 5 Harris 399.
The practical exposition of Bickerdike v. Bollman, that was given in Sharp v. Bailey and Lafitte v. Slatter, has been since approved in Massachusetts, Kinsley v. Robinson, 21 Pick. 328; and Maryland, Orear &c. v. McDonald &c. 9 Gill 356. Although there was no notice to the drawer, there was a verdict against him in the first of these cases on the ground that the bill was drawn for his accommodation; and in the last case demand and notice were held indispensable because the drawers, from the time of drawing the bill up to the period when it became due, acted under the full expectation, honestly entertained and based upon reasonable grounds, that it would be paid by the drawees at maturity.
2. Acceptance of bill for drawer's accommodation, does not dispense with notice to endorser.
The case of an endorser of a bill stands on a different footing from that of a drawer. Brown &c. v. Maffey, 15 East 216. He is in the nature of a surety, or guarantor of its payment on due presentment, and is presumed to know nothing about the arrangement between the drawer and drawee. Story on Bills 314. He is prima facie entitled to notice. It is not enough to exempt him that the bill is drawn without value, and that the drawer has no effects in the drawee's hands. Wilkes v. Jacks, Peake's N. P. C. 202. If he endorses to the holder, without value, or effects in the hands of prior parties, non constat that he is not entitled to notice; for he may have endorsed for the accommodation of others, in which case it is now clearly established by Norton v. Pickering, 8 Barn. &