Cribbs v. Adams

Bigelow, J. It is quite immaterial to the decision of this case, whether the contract declared on is regarded as a promissory note or a bill of exchange. In either case, being a foreign bill or note, and payable at sight, it was by the law merchant entitled to grace. Story on Notes, §§ 29, 224, 225 a. Chit. Bills, (10th Amer. ed.) 273, 365. If by the usage or law of the place where the contract was to be performed no grace was allowed, it was incumbent on the defendants to show it, as otherwise the rule of the general law merchant, as prevailing throughout the United States, must govern. Wood v. Corl, 4 Met. 203. It was necessary therefore for the plaintiff to show that the pill or note was presented to the defendants for payment. Without such proof there was no evidence of a breach of the contract. The defendants, whether makers or acceptors, were not bound to [600] pay until they had sight of the bill or note; because, until then, the time of its payment was not fixed by the commencement of the three days after sight, allowed for grace. Presentment w'as necessary in order to mark the time when the maker or acceptor was bound to make payment. The rule is, that where a promissory note or bill is payable on usance, months or days after sight, after notice, or at sight, it is essential to make presentment. Without it, by the terms of the contract, the money is not due and payable. Chit. Bills, 365. 1 Steph. N. P. 843. Holmes v. Kerrison, 2 Taunt. 323. Sturdy v. Henderson, 4 B. & Ald. 592. Dixon v. Nuttall, 1 Cr. M. & R. 307, 4 Tyrwh, 1013, and 6 Car. & P. 320. Thorpe v. Booth, Ry. & Mod. 388. The case at bar does not come within the rule that no presentment or demand upon the acceptor or maker is necessary, of a bill or note, payable at a particular place at a fixed time. In such case, the debt is payable at the time fixed by the contract, and no notice is required to render the duty of the debtor to pay it absolute. But where a bill or note is payable at sight, the time of the performance of the contract remains uncertain and indefinite until fixed by presentment and demand. The only other question in the case is, whether the plaintiff offered sufficient evidence of presentment or demand of payment, in order to determine when the three days of grace would terminate, and the bill or note become payable. We think it very clear that there was no competent evidence of this essential fact. Assuming that the protest of a notary, if duly made, and containing a certificate of the presentment and demand by himself, would be admissible to prove it; the difficulty in the present case is, that the notary did not present the bill or note personally, but by his deputy, and so states the fact in his “ instrument of protest.” By the common law, as we understand it, and according to the uniform practice in this commonwealth, the duties of a notary must be performed personally, and not by a clerk or deputy. He is a sworn officer, clothed with important public duties, which in their nature imply a personal confidence and trust. Chit. Bills, 458, 460. Onondaga County Bank v. Bates, 3 Hill, [601] 53. Hunt v. Maybee, 3 Selden, 266. Kirtland v. Wanzer, 2 Duer, 278. Doubtless, by well settled usage in some places, and in others by express provision of statute, notaries are authorized to employ clerks or deputies to perform official acts coming within the sphere of their duty, and are empowered to certify and authenticate their acts by their own notarial certificates, in like manner as if such acts had been performed by themselves personally. But such usage or provision of law is a fact to be proved by evidence. 1 Greenl. Ev. §§ 486, 488. Rev. Sts. c. 94, §§ 58, 59. At the trial of this case, the plaintiff offered no evidence to prove that a notary in Louisiana was authorized either by usage or statute to employ a deputy, or to authenticate his acts by his own certificate Plaintiff nonsuit