Ellis's Administrator v. Commercial Bank

Mr. Justice Clayton delivered the opinion of the court. This was an action of assumpsit, brought against the appellants by the appellee, upon two bills of exchange, indorsed by their intestate. One of these was for five thousand dollars, payable in New Orleans; the other was for two thousand dollars, payable in Philadelphia. Several questions applicable to each of these separately, grow out of the instructions asked of the court. Those in regard to the larger bill, will be first considered. The defendants by their counsel asked the court to instruct the jury “ that the post-mark on the envelope is evidence of the time when notice was mailed in the post-office.” This the court refused to do. A charge had been before given at the request of the plaintiff, and without exception on the part of the defendants, that “ if the notary put the notice in the New Orleans’ post-office on the day or day after the bill was protested, he discharged his duty; and the fact that it was detained in the post-office there, does not discharge the indorser.” The testimony of the notary was, that he had placed the notice in the post-office at New Orleans, on the day of the protest of the bill. If by the term “ mailed,” as used in the charge asked for, is meant the time when a letter is started from the office in which it is deposited, the instruction was correctly refused, because that is not the point of enquiry, and in a case like this, it was a mere abstract proposition. If the holder of a bill places the notice of protest in the proper office in due time, it is legal diligence, and he is not responsible for» any defects in the regulation of the mails, or for the time which elapses from its deposit in the office and its delivery. Dickens v. Beal, 10 Peters, 579. But if by that term was meant the time when the letter was deposited in the office, it was not evidence of that fact, except by inference and presumption. In the charge given at the instance of the plaintiff, the jury had been told at what time the letter must [302] be put in the office in order to render the defendant liable; they had the letter and post-mark before them, as well as the evidence of the notary, and it was for them to decide upon the whole testimony. The charge asked by the defendant would seem intended to exclude other evidence, and to make the post-mark the sole proof of the fact. For the reason that a correct charge had already been given, the one under consideration was properly refused. The next ground of exception grows out of the refusal of the court to charge the jury “ that if the bill was the property of the plaintiff, and was sent to New Orleans for collection, and there protested, it was the duty of the notary to address notices directly to the indorser at his residence.” The doctrine is well settled, that an agent of the holder is allowed one day to give notice to his principal of a default, and the principal to one day after he receives the notice, to give or forward notice by mail to the drawer or indorser. 3 Kent, 108; 4 Yerger, 265; Colt v. Noble, 5 Mass. United States Bank v. Goddard, 5 Mason. There is no distinction as to the point of notice whether the party who causes the bill to be protested be a holder in his own right, or in right of another. This charge was therefore correctly refused. The other charges asked for by the defendant in reference to this bill were given by the court; and as they Avere not excepted to by the plaintiff, it is not necessary for us to pass upon them. The facts out of Avhich those charges grew were no doubt considered by the jury to be in favor of the plaintiff. This disposes of the points in regard to the larger bill, and there is no error injurious to the appellant, or of which he can complain so far as that bill is concerned. The first instruction asked by the defendant as to the other bill, was, "that the demand must be proven to have been made by the notary; proof of demand made by the clerk is not sufficient.” This was refused. The evidence left it in doubt by whom the demand was made; the point was therefore material. The court erred in refusing to give this charge: the bill being a foreign one. Carmichael v. Planters’ Bank, 4 How. 567. The statute likewise contemplates that the duties of the notary should be performed by him in person, and that his certificate should rest upon his own [303] knowledge, not upon information furnished by others. How. & Hutch. 373. If in this case the demand and protest should be made in accordance with the laws of Pennsylvania, because the bill is made payable there, the laws of that state in that particular are like our own, so far as we have any information. See Stewart v. Alison, 6 Serg. & Rawle, 324; 8 Watts, 401; Chitty on Bills, 489. The only remaining question is, whether the act of the notary or his clerk amounted to a demand, or furnished an excuse for the want of it. The proof is that “ he went to the counting house of the acceptor, found it shut up, and no person there to answer for the payment: ” the bill was then protested. In nearly all the cases which we have been able to find on this point, after a very diligent search, the evidence shows that enquiry was made in the neighborhood for the maker or acceptor, when he was not found at his dwelling or place of business, and thus an excuse for want of personal demand is furnished. 3 McCord, 394; Shed v. Brett, 1 Pick; Hine v. Alley, 1 Nev. & Man. 433; Bayley on Bills, 198; Chitty on Bills, 398. In Collins v. Butler, 2 Strange, 1087, it was held that finding the house shut up, was not in itself a sufficient excuse for want of presentment. See also the case of Stewart v. Eden, 2 Caines. But as this case will be reversed upon another ground, it is not necessary for us now to decide this point, we therefore withhold the expression of any opinion upon it. For the error in refusing to charge that the plaintiff must show that the demand was made by the notary himself, otherwise his protest is not evidence of the demand, the judgment will be reversed. Judgment reversed and new trial awarded.