Burke v. McKay

Mr. Justice STORY delivered the opinion of the court. This is a writ of error to the Circuit Court of the district of Mississippi. The plaintiff in error brought' an action of assumpsit in that court, against the defendant in error, as endorsee upon a promissory 'note dated at Clinton, Mississippi; January 20, 1837, whereby R. E. Stratton, Samuel W. Dickson, and B. Garland, or either of them, on the first day of January, 1840, promised to pay Robert Mathews or order, $2800'' for value received. 'The note .was endorsed by Mathews .’as follows, “ I assign tire within note to Robert McKay, and hold myself responsible for the same, .-waiving notice of demand and protest, if not paid at maturity'.” The note was afterward endorsed by McKay, (the defendant,) as> it should seem, in blank, and the plaintiff in error in his declaration made title as immediate endorsee to McKay. At the trial of the cause upon the general issue, the plaintiff read the note and^the endorsement, arm also proved that, at the maturity of the note, due demand of payment was made of the makers, by S. W. Humphreys, a justice of lire peace of Hinds county, Mississippi, styling himself-« acting -notary publicwho, upon the non *71 payment, made due protest thereof, (the protest being by consent admitted as evidence of the facts,) and gave due notice thereof to the payee of the note and to all the endorsers. The defendant (McKay) also admitted that, in a settlement with the makers of the note, in some other transactions, the present note was included, and the defendant released the makers from all liability thereon, but he denied that he had ever received of the makers full payment of the said note ; and that, upon a compromise of all claims and controversies between them, he released the makers froin all liability to the defendant; and he agreed that the same statement should be read and received at the trial of the case by the court and the jury. The district judge (who alone-sat in the cause) instructed the jury, that, in order to charge the endorser of a promissory note, the plaintiff must prove that it was protested on the day of its maturity by a notary public, and demand made and notice of non-payment given by him; that the statement of Humphreys, admitted as evidence, not proving that fact, they must find for the defendant. Whereupon the jury returned a verdict for the defendant, and judgment passed accordingly. Á bill of exceptions Was taken by the plaintiff to the instruction of the court at the trial; and the cause now comes before us upon the writ of error to examine the correctness of that instruction. And we are all of opinion, that the instruction was incorrect, and not maintainable in point of law. In the first place, by the general law merchant no protest is required to be made upon the dishonour of any promissory note; but it is exclusively confined to foreign bills of- exchange. This is so well known that nothing more need be said upon the subject than to cite the case of Young v. Bryan, 6 Wheat. R. 146, where the very point was decided. It is true that it is a very common practice for a notary public to be employed to make demand of payment of promissory notes from the .makers, and also to give notice of the dishonour to the endorsers thereon. But this is a mere matter of convenience and arrangement between the holder and the notary, and is by no means a requisite imposed or recognised by law, as binding upon the holder. Unless, therefore, there be some statute in Mississippi, 'requiring the intervention of a notary in such cases, (as we understand there is not,) or some general usage equally binding, it is clear that the instruction proceeded upon a mistaken ground. In the next place, it is no necessary part of the official duty of a notary (subject to the like excep *72 tions) tp give notice to the endorsers of the dishonour of a promissory note, although certainly it, is a very convenient and useful course in the transaction of such affairs in commercial cities. In the next place, if a protest were necessary, it is equally clear that it is not indispensable in all cases that the same, should, be. actually made by . a person who is m fáct a ftotary. . In many cases, even with regard to foreign' bills of ^exchange, the protest may, in the absence of a notary, be made.by other functionaries, and. even by merchants. But where, as in Mississippi, a justice of the peace is authorized by positive law to perform .the functions and duties of a notary there is no ground to say that his act of protest is not'equally valid with that of a notary. Quoad hoc he acts as a notary. See Howard and Hutchinson’s Statutes of Mississippi, ch. 37, sect. 24, p. 430. ■ In the next place, in the present case, under the circumstances, the endorser (McKay) was not entitled to any notice whatsoever of the dishonour* He had actually discharged the makers from all liability for the payment of the note by his release and settlement with them. Of course the notice could be of- no use or value to him; for he would in no event be .entitled to any recourse over against them; and, therefore, no noticé to -him would have, been necessary, although it fully appears that he had received due notice •of the dishonour. • For these reasons, we are of opinion that the judgment bought to he reversed and a venire facias de novo awarded. order. - This cause cáme on to be heard on the transcript of the record from the Circuit Court of the United States for the Southern District of Mississippi, and was argued by counsel. On consideration whereof, It is now here ordered and adjudged by this court, that the judgment .of the said Circuit Court, in this cause he, and the same is hereby reversed with costs, and that this cause be, and the same is hereby remanded to the said Circuit Court with directions to award a venire fados de novo: