Nott's v. Beard

Garland, J., delivered the opinion of the court. From the mass of extraneous and immaterial matter, with which the clerk of the inferior court has incumbered the record, we have extracted the facts of this case. The defendant in January, 1837, at New-Orleans, drew a bill of exchange in his own favor, on Bullitt, Shipp & Co., for six thousand nine hundred and sixty-two dollars and forty-nine cents, payable twelve months after date, which was accepted, and the bill put in circulation by the drawer endorsing it. When the bill became due it was protested for non-payment, and this suit is instituted by the holders. The answers are: 1. Jonathan Montgomery is not the executor of Nott. 2. He has no interest in the bill, either in his own right or as executor. 3. A general denial. The first ground of defence is destroyed by the production of Montgomery’s authority, to act as executor, issuing from the probate court, in New-Orleans. The same evidence, with the fact of possession, establishes his right to the bill, and disposes of the second ground. It is sufficiently set forth in the petition that -he sues as executor. Under the general denial, many objections have been presented. 1st. It is said there is no evidence of Beard’s endorsement of the bill. The reply is, the record shows he permitted the bill and protest to be offered as evidence, without objection, and it is too late now to say the signatures were not proved. 2nd. It is urged the plaintiff has failed to prove that Beard had no funds in the hands of the acceptors. That is immaterial. The bill was' not paid and the drawer is not discharged, if the other legal steps have been taken to make him liable. 3rd. It :is said the notice of .protest for non-payment is insufficient. The .notary says he addressed the notice to “Pecan Grove post-office, Louisiana.” The counsel for defendant says it ¡is insufficient, as it is not stated or proved that Pecan Grove post-office is in the parish of Carroll. The law requires notaries to put the notice ,of protest in the [311] nearest post-office to them, addressed to the drawers, acceptors, endorsers or others, at their domicil or usual place of residence, Jlcts of 1827, p. 76, section 2. It is impossible to have a notice sent to the house of each drawer or endorser, in distant places, and the law is satisfied by its being directed to the post-office nearest to them. The notary says, from the information he obtained as to the residence of the defendant, he had so addressed the notice. Post-offices are establishments authorized by the laws of the United States, and we are bound to recognize such as are established in our own state, at least, and those engaged in transporting the mail are presumed to know in what parishes they are situated, and carry all communications to their proper destination. However desirable it may be that notaries should mention the parish in which an obscure or new post-office is situated, we are not prepared to say an omission to do so is fatal to the rights of a party. In many instances it would be considered surplusage to mention the name of the parish in which afiostoffice is situated, and as there is no law which says expressly it shall be done, we are not disposed to insist upon it, in a case where it is not alleged any injury has resulted from the omission, or that there is a post-office nearer to the party. Where the notary states he “ aemandedpayment of the draft at the counting-house of the acceptor,” it is sufficient, without saying “ the draft was presented and payment thereof demanded.” 4th. It is further alleged, the protest does not show the bill was ever presented for payment by the notary. He says, at the request of the “ holder of the original draft, whereof a true copy is on the reverse hereof written, I demanded payment of said draft at the counting-house of the acceptors thereof, and was answered by Mr. Bennett, one of said firm, that the same could not be paid.” The counsel for the defendant says, the protest should say the bill was presented and payment thereof demanded. It might be more specific perhaps if the notary had used these words, and more satisfactory to a nice critic, but as we seek the means of promoting the ends of justice, and enforcing the speedy execution of contracts, more than the beauties of composition and philological exactness, we are disposed to give such meaning to terms used by public officers, as will be understood by the mass of mankind and effect the objects in view. [312] It is a well settled law, that the holder of an accepted bill, before he can call on the drawer for payment, must make a presentment for or demand of payment, and give notice of the refusal. It is equally certain, the person making the present-ment or demand must have the bill with him ; but it does not follow, as a consequence, because both words are not used in the protest that he had not the bill with him. The act of the legislature passed in 1827, vests notaries with certain powers in relation to these matters, and gives more authenticity to their acts than to private individuals. They are public officers, and the presumption of law is they do their duty. It is not to be presumed that a notary would do so useless an act as to go to the house of the acceptor of a bill, to demand payment, and not have with him the obligation he was specially charged to collect. Chitty and Bayley in their treatises on bills and promissory notes, and the annotators on them, use the terms, demand and presentment, almost as synonymous. Bayley, in the same sentence, says “a demand of payment, by a person who has not the bill or note with him at the time, is not a sufficient presentment.” Our statute uses the word demand; and presentment is no where found in it. In the argument at the bar, great stress has been placed on the decision of this court, in the case of Warren vs. Briscoe, 12 Louisiana Reports, 472. The law in that case was correctly laid down, but the facts were not precisely similar to the present. In that, the note was “ payable at the Planters’ Bank of Mississippi, at Natchez,” and the notary certified “ he went to the Planters’ Bank, Natchez, and was informed by the teller there was no funds in the bank for the payment of said note, wherefore he protested, &c.” He does not say he presented the note for payment or made a demand of it, and the court so say in their opinion. The defendant complains the district judge refused him a trial by jury, in which he was certainly correct. The defendant did not entitle himself, from any thing we see in the record, to a trial by jury. Acts 1839, p. 172, section 24. [313] Upon a full examination of the case, we see no reason for interference with the judgment of the District Court, and-therefore affirm it, with costs.