Cookendorfer v. Preston

Mr. Justice McLEAN delivered the opinion of the court. ■ . The questions in this case arise on the rulings of the court, to which, at the trial, exceptions were taken. Preston, the defendant, as the indorsee of a promissory note, brought an action against the plaintiff in error, the indorser. The signatures of the maker and indorser- were admitted. These grounds of error are assigned:— 1. That the court erred in admitting the testimony of the notary public. 2. ' In refusing the instructions asked by the defendant’s counsel. 3. The declaration is defective. George Sweeny, the notary who protested the note, testified that it was delivered to him by the Bank of Washington, who held it for collection', to demand payment, and that he did thereupon, the 4th of February, 1840, present the note to the bank, and demanded payment, but was informed by the proper officer that there . were no funds to pay it, on which he protested the same for nonpayment ; and On the next day, the 5th of February, he delivered to Cookendorfer, the plaintiff in error, the following notice, in . writing: — “ Washington, 1ebruary 5th, 1840. a Sir, — A note drawn by E. T. Arguelles, dated 17th May, 1839, for three hundred dollars, payable 1-4 February, 1840, due, and by you indorsed, and for which you are accountable to the president and directors of the Bank of Washington, has been this day protested for non-payment.” And the witness stated, “ that he made the demand and gave the notice according to his usual practice,” and “ that said practice conformed, as far as he knows and believes, to-the practice of the other notaries in the city of Washington.” And other evidence was given, conducing to show that the usual practice in such cases was, “ when a notice was to be sent abroad, to put it into the post-office, and date it on the third or last day of grace ; but when the notice was to be delivered in the city of Washington, a latitude was allowed to the notary either to deliver the notice on the third or last day of grace, or the day after the last day, and in all cases to date the notice on the day of its delivery; and the usage is to extend the protest on the day on which the notice is given, as in this .case, stating the demand to rave been made on the last day of grace, and the. protest to be dated the same day on which the notice is dated.” It-is insisted' that the notary, by reason of his interest in this suit, is an incompetent witness. *325 In the casé of Smedes v. Utica Bank, 20 Johns. R. 372, it was held that a bank which receives a promissory note for collection, to charge the indorser, by a.regular notice, is liable for neglect-; but this is not the case where the bank delivers the note to a notary, who is a sworn public officer, and whose! duty it is to make the demand and give the notice; The same doctrine is laid down in 3 Cowen, 662. From this it is argued that the notary is liable directly to the holder of the paper for neglect, as a public officer, and not to the bank, as its private agent. That in the latter case he would not be liable to the holder of the paper, but might be called on to indemnify the. bank which'had suffered on account of his laches. A notary is a competent witness on the same ground that other agents are admissible. They are always, responsible to their principals for gross negligence, and yet, from the necessity of the case, they are competent witnesses to prove what they have done in the name of their principals. It appears that the witness, who generally acted as notary for the Bank of Washington, had given a bond, with security in the sum of ten thousand dollars, for the faithful performance of his duty ás notary public, in the business of the bank committed to him. But this, it would seem, does not render him incompetent. .“ The cashier or teller of a bank is a competent witness for the bank, to charge the defendant on a promissory note, or for money lent or overpaid, or obtained from the officer without the security which he should have, received ; and even though the officer has given bond to the bank for his official conduct.” Greenleaf’s Ev. 485 ; The Franklin Bank v. Freeman, 16 Pick. 535 ; United States Bank v. Stearns, 15 Wendell, 314. It is further insisted, that if the notary wag competent to state his own acts, he could not prove the usage under which he acted. He stated, that in making the protest and giving notice he pursued “his usua[.practice,” “ and, so far as he knew, the practice of the other notaries in the city.” . Now it would be an exceedingly technical rule which would permit a notary to say what he had done in a particular case, but prohibit him from stating that he acted in such case according to his usual practice. And this was all the witness did say ; for although he spoke of his belief as to the practice of other notaries in the city, he does not .state that he had a knowledge of their practice. The instruction prayed by the defendant’s counsel, and the refusal of which is the second ground of error assigned, was,.“ that ' the said evidence was not sufficient, if believed to be true, to show that payment of said note had been duly demanded and refused, and that due notice of such dishonor had been given to defendant, so as to bind him.” In the case of Renner v. The Bank of Columbia, 9 Wheat. *326 582, a suit was brought against the irj^orser of a note which had been negotiated in.the Bank of Columbia. Payment was demanded, and the'note protested on the fourth day after that mentioned in the note as the day on which it became payable. This was proved to be the usage of the bank, and this court held the demand was made at the proper'time. In Mills ®. The Bank of the United States, II Wheat.. 430, this court held, that “when a note is made payable or negotiable at a bank, whose invariable usage it is to demand payment and give notice on the fourth day of grace, the parties 'are bound, by that usage, whether they have a personal knowledge of it or not.” In the Bank of Washington ®. Triplett and Neale, 1 Peters, 25, this court sanction the usage to make the demand of payment of a note which was- left in the bank for collection on the day after the last day of grace, placing such notes, in this respect, on the same footing as notes discounted by the bank. And that such was the usage in 1817, . when payment on the note or bill in question was demanded, was proved in that case. . But it was also proyed, as appears from the record, that the usage was changed in 1818 by all the banks of Washington and Georgetown, “so as to conform to the general commercial usage of demanding payment on the last day-of grace.” This referred to notes or bills sent to the banks for, collection, and of course embraces all notes not negotiated in bank. Where a usage is sanctioned by judicial decisions, it becomes the law of the place, and no further proof is necessary to establish it; and it is said, that no evidence is admissible to controvert the fact, as laid down by the court. Edie v. East India Co., 2 Burr. 1221. Now if the usage, as sanctioned in the cases above cited, governs this case, it is clear that such diligence has not been used as to charge the indorser. For, under that, usage, the demand should have been made on the day after the third day of grace, when it was in fact made on the third day of grace. This objection is met by the defendant in error by the proof of the usage as' stated ; which he insists governs all notes not discounted by the banks of the District. .. The note in question was riot discounted by the Bank of Washington, it being merely left there for collection. But it is insisted that this usage cannot be shown to overthrow that which has been sanctioned by judicial decisions. A local usage may be changed in the same mode by which it was established. But parol evidence is not admissible to show that the usage was different, at the timet, from what the courts have solemnly adjudged it to be. The law merchant is founded upon custom, and every modification of it by local usage shows that, like other laws, it may be changed. The usage proved in this case$ except in Bank of Washington v. *327 Triplett and Neale, and that is explained by the evidence cited, does not conflict with that decided by this'court, if the latter be limited to notes discounted by the banks, and the former applies to all other notes payable in the District. In other words, that the law merchant should be modified by the usage only as to demand and notice on notes discounted by the banks. And it would seem, from the decisions above cited, the usage to demand payment the day after the third day of grace had its origin with the banks, and has not been . extended, since 1818, to paper not discounted by them. On all other paper, a demand is made on the third -day of grace, and the “ usage is to extend the protest on the day on which the notice is given, stating the demand to have been made on the last day of grace, and the protest to be dated the same day on which the notice is dated.” Now a demand and protest on the last day of grace, and a notice on the following day, come strictly within the law merchant. And this was” the diligence used in the present case, except the formal date of the protest on the day of the notice. No confusion can, therefore, arise from this'general commercial usage, as it.conforms to the established law. No inconvenience has arisen, it is supposed, from the bank usage in the District, which has been so long and so firmly established. No defects in the declaration are perceived, and none have been pointed out to us, which are not cured by the verdict. Upon the whole, we affirm the judgment of the Circuit Court, with costs.