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So, likewise, the New York statute, relative to proof of notice by certificate, applies to none other than notaries of that state. Bank of Rochester v. Gray, 2 Hill 231; Acts of 1833, p. 395, § 8. Under this act the notary's certificate is proof of the service of notice upon any or all of the parties to the bill or note; the certificate specifying the mode of giving it. Bank of U. S. v. Davis, 2 Hill 456. It is not necessary for the certificate to set out a copy of the notice or the whole contents thereof. Seneca Co. Bank v. Neass, 3 Comstock 445.
By the Virginia act of January 28, 1829, it was provided as follows:
That when any bill, draft, note or check, shall be protested for nonacceptance or non-payment, a protest made by a notary public, stating the time, place and manner of presenting the same, and of giving notice of the protest thereof, verified by the affidavit or solemn affirmation of such notary public, made before any justice of the peace of this commonwealth, on the same day, or next day after such protest made and notice given, may be read as evidence in any suit founded upon such bill, draft, note or check, unless the court, in which the suit may be depending, shall be satisfied, by the affidavit of the defendant or otherwise, that the personal attendance of such notary, or his deposition taken according to law, would be necessary in order to a fair trial or just decision of the cause. Sess. Acts 1828, 9, p. 27, ch. 24, §2.
In lieu of the words in italics, the act of February 3, 1834, substituted the words, at any time. Sess. Acts 1833, 4, p. 75, ch. 62, § 1.
The holder was not bound to pursue the mode prescribed by this law. He might still prove the notice by competent testimony. But if he relied on the act, he was required to bring himself within its terms; he was to see that the protest stated the facts which the law requires. If the protest stated that notice had been forwarded to the maker, but omitted to state that notice had been forwarded to the endorser, it was not evidence of notice to the endorser; nor was it made so by an ex parte affidavit. Such affidavit was entitled to no higher respect than an ex parte affidavit of any other fact necessary to be proved at the trial. Walker v. Turner, 2 Grat. 534.
This decision upon the statutes of 1829 and 1834, also applies to the existing provision in the Code of 1849. The 7th section of chap. 144, p. 581, declaring that certain instruments shall be deemed negotiable, is followed by this section.
The protest both in the case of a foreign bill, and in the other cases mentioned in the preceding section, shall be prima facie evidence of what is stated therein, or at the foot, or on the back thereof, in relation to presentment, dishonour and notice thereof.
Statutes on this subject have also been passed in Maryland, 1837, c. 253; 1 Gill 149, 4 Id. 201; and in North Carolina, 2 R. S., c. 13, § 10; 10 Iredell 388.
11. How proof of notice is dispensed with on proof of promise to pay.
It seems to have been early laid down that "if an endorsee has neglected to demand of the drawer in a convenient time, a subsequent promise to pay by the endorser will cure this laches." Lord Raymond, C. J. in Haddock v. Bury, Middlesex Term, 3 Geo. 2, MS., Burnet, J. cited in 7 East 236, note a. The laches in not giving notice of dishonour was considered to be waived by the defendant's promise, Anson v. Bailey, Bull. N. P. 277; and sometimes by other conduct, Whitaker v. Morris, 1 Esp. Dig. 58; Vaughan v. Fuller, 2 Str. 1246.
The party's promise to pay did away the necesssity of considering the question relative to the want of notice. Ashurst, J. in Rogers v. Stephens, 1 T. R. 719. It was an admission that the holder had a right to resort to him. Ld. Kenyon, S. C. 718; Hopes v. Alder, 6 East 17, note; Wilkes &c. v. Jacks, 1 Peake's N. P. Cas. 202.
From the promise of an endorser to pay, Lord Ellenborough presumed that the bill had been presented for payment in due time and dishonoured, and that due notice had been given to him. Lundie v. Robertson, 7 East 235; Taylor v. Jones, 2 Camp. 105; Gibbon v. Coggon, Id. 188; Jones v. Morgan &c. Id. 474; Stephens v. Lynch, 2 Camp. 332, 12 East 38; Porter v. Rayworth, 13 East 417; Horford v. Wilson, 1 Taunt. 12; Greenway &c. v. Handley, 4 Camp. 51. He treated it as a question whether the defendant had notice. Hopley v. Dufresne, 15 East 274. And so it has been treated in England since. Gunson &c. v. Metz, 1 Barn. & Cress. 193, 8 Eng. Com. Law Rep. 58; Margetson v. Aitken, C. & P. 338, 14 Eng. Com. Law Rep. 336, Standage &c. v. Creighton, 5 C. & P. 406; Dixon &c. v. Elliott, Id. 437, 24 Eng. Com. Law Rep. 383, 400. These last three cases being at nisi prius, do not indicate the principle on which the English decisions proceed so clearly as is done in Perkins v. Graham, 1 C. & M. 725, and Hicks v. Beaufort, 4 Bing. N. C. 229, 33 Eng. Com. Law Rep. 237. These cases shew that when after the dishonour the drawer distinctly promises to pay, that is considered evidence from which it may be inferred he has received notice of the dishonour; because men are not prone to make admissions against themselves; and therefore when the drawer
promises to pay, it is to be presumed he does so because he knows the acceptor has refused. Hicks v. Beaufort. The promise was considered sufficient evidence of dishonour in Houlditch v. Cauty, 4 Bing. N. C. 411, 33 Eng. Com. Law Rep. 394; Norris v. Salomanson, 4 Scott 257, 36 Eng. Com. Law Rep. 380; and insufficient in Blesard v. Hurt, 5 Burr. 2670; Goodall v. Dolley, 1 T. R. 712; Barradarle v. Lowe, 4 Taunt. 97, Pickin v. Graham &c. and Hicks v. Beaufort; it was not in these last cases so distinct and unconditional as to be conclusive upon the defendant that he had received notice. And where a defendant said, "I do not mean to insist upon want of notice, but I am only bound to pay you £ 70," the plaintiff's had to be satisfied with the £70, notwithstanding the defendant added, "I will call to-morrow morning and see that all is arranged satisfactorily." Fletcher &c. v. Froggatt, 2 C. & P. 569, 12 Eng. Com. Law Rep. 267.
The English doctrine has been recognized in the United States in several cases. Leffingwell &c. v. White, 1 Johns. Cas. 100; Pierson &c. v. Hooker, 3 Johns. 68; Walker v. Laverty &c. 6 Munf. 487; Pate v. McClure &c. 4 Rand. 170; Higgins v. Morrison's ex'or, 4 Dana 103; Martin &c. v. Ingersoll, 8 Pick. 1; Hall v. Freeman, 2 Nott & M. 479.
But generally the cases in this country proceed on the ground that the promise to pay operates rather as a waiver of the proof of notice, than as a foundation for the presumption that notice has been given.
Whether the endorser is bound by such promise, it has been said depends on whether or no he made it with knowledge of all the circumstances, and made it absolutely or on condition. Donaldson v. Means, 4 Dall. 109; Freeman &c. v. Boynton, 7 Mass. 487, 8. If the promise was conditional, then it is only binding on the terms proposed. Crain v. Colwell, 8 Johns. 299; Agar v. McManus, 11 Id. 180; Sice v. Cunningham, 1 Cow. 410; Reynolds &c. v. Douglass &c. 12 Peters 506. Though unconditional, it is not binding if made in ignorance of a material fact. Bogart v. Nevins &c. 6 S. & R. 367. It ought to be with knowledge of all the circumstances which operate to discharge the party, and it should be distinct and clear. Fotheringham v. Price's ex'ors, 1 Bay 291; Warder &c. v. Tucker, 7 Mass. 452; Hopkins v. Leswell, 12 Id. 53; Richter v. Selin, 8 S. & R. 438; Miller v. Hackley, 5 Johns. 385; Griffin v. Goff, 12 Id. 424; Creamer v. Perry, 17 Pick. 335; Tickner &c. v. Roberts, 11 Louis. 14; Bank of U. S. v. Ellis, 13 Id. 368; Williams v. Robinson, Id. 419.
Many cases in New York have held that if an endorser of a bill or note who has not had regular notice of non-payment
by the acceptor or maker, with full knowledge of that fact, makes a subsequent promise to pay, it is a waiver of the want of notice, and he is liable; but that it must be shewn by the plaintiff affirmatively and clearly, that the defendant knew when he made the subsequent promise that he had not received regular notice. Duryee v. Denniston, 5 Johns. 248; Trimble v. Thorne, 16 Id. 154; Sice v. Cunningham, 1 Cow. 406; Jones v. Savage, 6 Wend. 661; Leonard v. Gary, 10 Id. 507; Keeler v. Bartine, 12 Id. 119.
A similar doctrine has been maintained in the courts of the United States. Martin v. Winslow, 2 Mason 242. Declarations relied on in a case before the supreme court, it considered did not necessarily admit the right of the holder to resort to the defendant on the note, and that he had received no damage from the want of notice, unless the jury, to whom the conclusion of the fact from the evidence ought to have been submitted, were satisfied that the defendant was also apprised of the laches of the holder in not making a regular demand of payment of the note, by which he was discharged from his responsibility to pay it. The knowledge of this fact formed (in the court's opinion) an indispensable part of the plaintiff's case, since without it it could not fairly be inferred that the defendant intended to admit the right of the plaintiff to resort to him, if in point of fact he had been guilty of such laches as would discharge the defendant in point of law. Thornton v. Wynn, 12 Wheat. 188. The court assents to the principle that if the defendants recognize their obligation to pay, under a supposed liability which did not exist, from the facts of the case, and of which facts they were ignorant, such recognition would not be a waiver of the objection for want of notice. Reynolds &c. v. Douglass &c. 12 Peters 505; Union Bank v. Magruder, 7 Id. 290.
The difference between the ground of the English and American courts is very remarkable. It has been observed by Cowen, J. of the English cases, that in their whole range there is no trace of the rule that in order to make the promise available as an admission, it is necessary to shew that the drawer or endorser was aware of laches, which the promise was intended to cure. A remedy for laches is not the object. To require knowledge of laches would render every case going on the principle of presumptive evidence a legal solecism. The ground is that the promise shall be received, not as binding per se, but as evidence that there were no laches: in other words, that regular presentment had been made, that it was followed by non-acceptance or non-payment, of which notice had been duly given. Tebbetts v. Dowd, 23 Wend. 392, 3.
The former New York doctrine was followed in New Hamp shire, Otis v. Hussey, 3 N. Hamp. 346; but in Connecticut, Hosmer, C. J. was not willing to sanction Trimble v. Thorne, to the extent it had gone. Breed v. Hillhouse, 7 Conn. 523. This Connecticut decision was cited in New York by Cowen, J. with approbation. Tebbetts v. Dowd, 23 Wend. 405. In this case, there being no evidence tending to shew affirmatively that there had been laches, the unqualified promise was treated as evidence from which the jury might find that the endorser had due notice. S. C. 413. There was more difficulty as to the demand. "Although," said Bronson, J., "au unqualified promise by the endorser to pay the bill is presumptive evidence of notice, it has little or no tendency to prove a demand;" whether the bill has been presented for payment or not being a question on which, in the ordinary course of business, the drawer or endorser has no personal knowledge. But here was something more than a promise to pay. When called on by the witness, the defendant said he knew the check had been dishonoured, and had lain over." Although not conclusive, this was deemed evidence from which the jury might infer that the check had in fact been dishonoured-in other words, that it had been presented to the bank at the proper time, and that payment had been refused. S. C. 413, 14.
The doctrine of Tebbetts v. Dowd has been since acted on in New York. Willis v. Green, 5 Hill 235. In Kentucky, a promise to pay after a bill becomes due is considered an admission of regular presentment for payment and of due notice, or at least waives the objection that it has not been done. But the court of appeals of that state, takes a distinction between the effect of a promise to pay, in regard to the inference of notice, in cases of non-payment and non-acceptance, where a bill has been presented for acceptance before it becomes due. In the former case, the party is supposed to have known when the bill became due, and must actually know, or might readily have ascertained, whether or not there had been laches; and, therefore, the inference arises from a promise to pay, of a regular presentment for payment, and of due notice. But in the latter case, the fact of a bill having been presented for acceptance before it falls due, and dishonoured, lies peculiarly in the knowledge of the party presenting it, and there is no inference that a party who promises to pay after the bill falls due, knew of the refusal to accept, or of the neglect to give notice of such refusal. Bank of Tennessee v. Smith, 9 B. Monroe 610; Bank of U. S. v. Leathers, 10 Id. 65.