Crawford v. Branch of the Bank of Alabama at Mobile

COLLIER, C. J. — The notice informs the defendant, that tbe Branch of the Bank, &c., Will move for judgment against him, “at the next term of the Circuit Court to be holden for said county of Mobile, on the sixth Monday after the fourth Monday in March, 1841, and on the seventh Monday of said term.” This notice was received by the sheriff of Mobile on the 20th of April, 1843, and executed on the 7th of the succeeding month. In the transcript there is a plea entitled, Fall Term, 1S42, which was interposed by the defendant below in propria persona; at the foot of which the following memorandum is attested by the clerk, viz : “Filed, 5th May, 1842.” The fair inference from all this, is, that the motion was to be submitted at the term of the Court next succeeding the time when the notice was issued and served. We have repeatedly held, that where a writ requires the defendant to appear at the next term of the Court, and particularizes a time past, too remote in the future, or a time at which the Court does not sit, that this description of the term Will be rejected as' surplusage, and the process be held returnable at the term prescribed by law. We will not say that a notice, when it is the initiatory process, shall be governed by the same rule; but we cannot think that there is any principle that will permit a party to come into Court, plead to the merits of the actioñ, and then say that the process is defective, because it is returnable! at a time previous to its service. In Barton, et al. v. Peck, 1 Stew. & P. Rep. 486, it was de-fermined that in a summary proceeding against a sheriff and his sureties under the statute, for the failure to pay over money collected on an execution, the' notice must alledge that a demand was made of the sheriff, by whom, when and where;otherwise it will be bad on demurrer. This case was recognized in Broughton, et al. v. The Bank of Alabama, 6 Porter’s Rep. 48, and under the influence of its1 authority it was held210 to be competent to object to the notice In such case, on demurrer, or after judgment by default on error. But the objection never could be allowed after plea and verdict. It maybe remarked, that the cases cited have never been applied to notices at the suit of a Bank against a debtor. In Lyon v. The State Bank, 1 Stew. Rep. 442, it was decided-that such notice is sufficient, if it identify the debt with reasonable certainty, though it has not the technical precision of a declaration. This decision has been followed in practice, and the Bank notices have been considered unexceptionable, although they do not contain the extrinsic allegations that are essential to a declaration. It is true, it does not appear to have been shown that the defendant resided at St, Stephens, or that, that was the place at which notice should have been addressed to him. This was necessary to have been proved in order to make the notice available. We cannot think that this objection was specifically made in the Circuit Court, or it doubtless would have been sustained; yet upon the general objection of the insufficiency of notice to the defendant, we think it must be considered as properly presented. General objections calculated to entrap the Court, and the adverse party should be discouraged, and where they are not promotive of justice, should be most unfavorably regarded in an appellate Court; but the objection in the present instance, is not so loosely expressed as to authorize us to over; look it. It is not only necessary that the drawer of a bill should be notified of its dishonor by depositing a notice in the post office, when such is the proper medium of conveyance, but it should be properly addressed to him. Now there is nothing in the record to show that the defendant resided at St. Stephens, or that notice should not have been given him at New York or Mobile. In the absence of proof on this point it cannot be assumed that his residence was at one place or another, or that the notice was properly transmitted. The Court then should have required the plaintiff to make further proof on this point. In respect to the post mark upon the letter supposed to have been mailed at New York, it is not evidence per se that the letter was deposited in the post office on the day indicated by — 211 — its date. Chitty in his Treatise on Bills, (645-6,) thus states the law on this subject: “ In civil cases, the post mark upon a letter seems to be evidence of the time and place when it was put into the post office; and sometimes a reference to the post mark on a letter misdated will establish the real time of ■sending notice of the dishonor. In such case, although the post mark is not necessarily assumed to be genuine, and the best evidence of its authenticity would be the testimony of the very person who impressed the mark, yet it should seem that it may be proved by any post master, or any person in the habit of receiving letters by that post.” It has been frequently held that post marks proved to be such, are evidence that the letters on which they are, were in the office where those marks purport to have been made, at the time of their date. [Kent v. Lowen, 1 Camp. Rep. 177; Rex v. Watson, Id. 215; Langdon v. Hulls, 5 Esp. Rep. 156 ; Rex v. Johnson, 7 East. Rep. 65; Fletcher v. Braddyll, 3 Starkie’s Rep. 64; Rex v. Plummer, R. & M. C. C. 264; Abbey v. Lill, 5 Bing. Rep. 299.] In the present case there was no evidence of the genuineness of the post mark, and that fact could not be assumed in despite of the objection of the defendant, to the insufficiency of the proof to show, that he had been duly notified of the dishonor of his bill. The post mark being proved by competent evidence, the date which makes a part of it, would show prima facie at what time the mail was made up in which the notice was sent. Upon the dishonor of a foreign bill the custom of merchants makes a protest indispensably necessary, and the production of this protest attested by a notary public, without proof of the signature, or affixing of the seal, will in the case of a bill payable and protested out of this country, be evidence of the dishonor of the bill, and to it all foreign Courts give credit. [Chitty on Bills, 9th Am. ed. 361-2.] But the mere protest is not sufficient, a copy of it, or some other memorial must be sent within a reasonable time to the person on whom the holder means to call for payment. [Id. 363; Wallace v. Agry, 4 Mason’s Rep. 336 ; Lenox v. Leverett, 10 Mass. Rep. 1.] The law does not prescribe any form of notice to an indor-ser ; all that is necessary is, that it should be sufficient to put the party on inquiry, and to prepare him to pay it or to defend — 212 — himself. Even if there be some uncertainty in the description of the bill or note, if it does not tend to mislead the party it will be good. [Reedy v. Seixas, 2 Johns, cases, 337; Mills v. Bank of the United States, 11 Wheat. Rep. 431; Forster v. Jurdson, 16 East. Rep. 105; Chitty on Bills, 9th Am. ed. 501, et post & notes.] Where a note was payable in Bank, and a notice of non-payment was given on the day. that it became due, but in the notice the name of the maker was mistaken and the note was stated to be due three days before; the notice was held sufficient, it being in evidence that the indorser was liable on no other note in Bank. [Smith v. Whiting, 12 Mass. Rep. 6; 3 Kent’s Com. 2d. ed. 94.] A notice in these words, “I give you notice that the bill drawn by you, &c., is .dishonored,” was adjudged sufficient. [Beachamp v. Cash, D. & R. Rep. (N. P.) 3.] So it has been held, that it need not state at whose request it was given, or who was the owner of the note. [Shed v. Bret, 1 Pick. Rep. 401.] Nor is it necessary that it should state that the holder looks to the party notified, for payment; this is the natural implication from the notice itself. [Bank of the United States v. Carneal, 2 Porter’s Rep. 543; Cowles v. Hart, 3 Conn. Rep. 516.] It is said not to be necessary that the notice should come from the party who holds the bill, when dishonored, that it suffices if given by any person who is a party, to it. And it lias therefore been held, that if the drawer o,f indorser of a bill of exchange receives due notice of its dishonor, from any person who js a party to it, he is directly liable upon it to a subsequent indorser, from whom he had no notice of the dis-iionor, even frprp the acceptor. [Chitty on Bills, 9th Am. ed. 527-S, 530.] The notice in the present case is addressed to the defendant by writing his name at the foot of the page, as will be seen below. It is dated New York, December 23, 1841, and proceeds thus : “ Please to take notice that your two bills on Wm. C. Dickinson, one for 1,000 dollars and the other for 1,952 •92-100 dollars, and accepted by him, are protested for nonpayment, and that the holder looks to you for the payment ■thereof. Your obedient servant, JohN D. Campbell, Notary Public, Merchants’ Bank, and Attorney at Law — office No. 20, Wall street, RRs. Wm. CByvwEORn.” — 213 — This notice when taken in reference to the bill which was payable to the Merchants’ Bank, at which Campbell seems, by his subscription to exercise the office of notary, and the protest which was doubtless adduced at the trial, though it does, not form a part of this transcript, would authorize the presumption, that the party in whose name the notice is made out, was a notary public, and the same who protested the bills. This remark is made upon the presumption that the same name appears to the protest and notice. The fact, that the name of “ John D. Campbell” and his official designation, residence, &c. are printed, are wholly immaterial. If he adopted this as his own, it would be quite as effective for all legal purposes, as if written with his own hand. If then, there exists the harmony supposed, between the notice and the protest, the inference must be, that the person whose name appears to the notice, is the notary who was authorized .to demand payment of the bills, and of consequence the agent .of the holder to give notice of their dishonor. If the notice had been signed by a stranger representing himself as the agent of the holder of the bills, it would doubtless have been sufficient, if in truth he was his agent, although the defendant may not have been informed that such was his character. Here it was subscribed by a notary, who if he protested the bills was authorized to give notice of their dishonor. The protest by him would be evidence of his authority, and make the notice sufficient without the aid of a notarial seal, or .other assistant proof. It is usual for the holder only to give notice to the person from whom he immediately received the bill or note ; especially if he is ignorant of the residence of the other parties. The rule is settled, says Chitty — (Treat, on Bills, 520-1) — “that each party to a bill or note, whether by indorsement or mere delivery, has in all cases until the day after he has received notice, to give or forward notice to his prior indorser, and so on till the notice has reached the drawer. And this rule is so strongly fixed, that a party receiving notice of the dishonor of a bill, need not give or forward notice to the party immediately before him, till the next post after the day on which he himself received notice, although he might easily have forwarded it on that day, and although there is no post on the day follow — 214 — ing.” It is conceded that the law is as here stated, but it is denied that the notary in New York was authorized to send notices to the plaintiff to be addressed to the defendant or other parties, or that’ the notary could give notice to the defendant by letter, otherwise than by the direct course of mail. The record does not show that the plaintiff had any interest in the bill either as principal or agent at the time of its dishonor, and it cannot be said that the notices were properly sent to it, or that it was authorized to give notice to any party to the bills. Perhaps ihe protest may impart the necessary information on this point. But if the plaintiff was a party subsequent to the deiendant, it cannot be questioned that it was competent for the notary protesting the bills to send notices to the Branch Bank. Whitman & Hubbard v. The Farmers’ Bank of Chattahoochie, 8 Porter’s Rep. 258, impliedly admits that such is the law. Carson v. The Bank of Alabama, 4 Ala. Rep. 148, proceeds upon the same hypothesis; for a notice thus sent in that case, had been deposited in the post office, and no objection was made to its sufficiency. [See also Foster v. McDonald, 5 Ala. Rep. 376.] In Freeman’s Bank v. Perkins, 18 Maine Rep. 292, the Court say, where the cashier of a Bank is resorted to, by the proprietor of a bill to obtain payment, “he is to be considered as it respects the time of causing a protest to be made, and of giving notice, as a distinct holder or party to the instrument.” It is however intimated that if either the collecting agent or notary know .where the party to be charged resides, notice should be sent directly to him; but if they are ignorant of his residence, the notice may with propriety be directed to the holder of the paper. The Court further held, that it was competent for the holder to send a notice of his own by the mail of the succeeding day; but where he sent the notice prepared and transmitted to him by the notary, the indorser was adjudged to be discharged, because such notice was not forwarded by a mail that left two hours after its receipt. This decision is exceedingly unsatisfactory. With the first point determined by it, we have now nothing to do; the second, we have seen, is not in harmony with our own adjudications. The third, is sustained by no authority, which has ever come under our notice. In — 215 — distinguishing between a notice prepared by the notary himself and one made out by the holder of paper, the Court have acted upon reasoning too refined to be made the basis of a legal principle; and we cannot therefore recognize it as authoritative. Under the circumstances of this case, there was no necessity for referring to the jury the sufficiency of the notice to identify the bill. It identified with reasonable certainty both the bills by stating the name of the drawee and their amounts; and there was no evidence showing that the defendant had drawn any other bills for the same or a different amount on Dickinson. The genuineness of the notice conceded, the identification of the bill was a necessary conclusion. The case of the Ontario Bank v. Petrie, 3 Wend. Rep. 456, is unlike the present. There the note was due on Sunday, the 31st of August, the demand was made on Saturday, the 30th,, and notice sent by the first mail. The notice dated the thirtieth states payment was demanded last evening instead of this evening; and the Court said that the Circuit Judge “was right in submitting to the jury the question whether the defendant was misled.” In that case it could not be assumed from the notice, that the defendant was not misled, and hence the propriety of directing the inquiry of the jury to the point. But here under the proof there was no ambiguity, and the Court might very well have informed the jury, that if they found the other facts in respect to the notice in favor of the plaintiffs, the notice itself in the absence of countervailing proof, sufficiently identified the bill. This view does not at all trench upon the powers of the jury. It is but the common practice of instructing a jury what are the legal conclusions from established facts. In cases where there is room for doubt as to what construction should be placed upon a written notice, and what the party to whom it was addressed should understand by it, the question should be referred to the jury. By the third section of the act creating the Branch of the State Bank at Mobile, it is provided, that the president of that institution shall always be one of the board for the transaction of business, “ except in cases of sickness or necessary absence, in which event the board may appoint a president pro tem-pore In Bancroft v. The Branch Bank at Mobile, 1 Ala. — 216 — Rep. N. S. 230, vte held, that the certificate of the president pro tem., was competent to show that a note sought to be recovered by notice and motion under the charter, was lona fide the property of the Bank. In Roberts, et al. v. The State Bank, 9 Porter’s Rep. 312, it \vas decided that it was not necessary, that the- certificate of the president elected by the Legislature should be authenticated by the seal of the corpora-tion; that the Court would judicially recognize his official character, and intend in the absence of all proof on the point that his signature was genuine. This decision was made upon the' ground that the President was quasi a public officer, and the evidence of his election and qualification was shown by the archives of the State. But in Crawford v. The P. & M. Bank of Mobile, at the last term, we considered, that as the State' had no interest in that institution, and no agency in electing its officers, it could not be judicially known that certain persons who had acted as president and commissioner, were in point of fact such officers; and that their official character should be' shown by proof. Neither of the cases cited is like the present in its facts. In Bancroft’s case, the official character of the president joro tem. was impliedly, if not expressly conceded. In Robert’s case,the president derived his office from the Legislature; and in the' last, the Legislature had no interest in the corporation or anything to do with the election of its officers; Here we are required to know that an individual of the same name who' makes the certificate was elected a director, but we are not informed that he was president pro tem. when he made the certificate. There can be no evidence of the fact in any of the public offices. Under these circumstances it cannot be intended, that he was authorized to exercise the character assumed.His act does not prove that he had the sanction of the board to sustain him, and as this was indispensable to its regularity,it should have been established by proof. The most liberal presumption in favor of what has been done by persons irs public stations would not allow such proof to be dispensed with.- This closes the view, which the argument for the plaintiff in error required ns to take of this cause — the result is, that the judgment of the Circuit Court is reversed and the cause remanded. — 217 — We observe that the clerk of the Circuit Court has improperly sent up some of the original papers with the transcript, ■which will be indispensable upon another trial below: the clerk of this Court will therefore deliver them to the clerk of the Circuit Court, the attorney of the Bank, or the order of either of them, upon exact copies being substituted and attached to the transcript.