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December 1, 1859


THIS case was brought up by writ of error from the Circuit Court of the United States for the eastern district of Louisiana. It was an action brought by Wiseman against Chiappella, who was a notary public in New Orleans, upon the ground that he had been negligent in protesting a bill of exchange, and in consequence of such negligence Wiseman had lost the money. The question therefore was, whether or not he had been guilty of negligence. The question of prescription was also decided by the Circuit Court, and argued here, but it will not be further noticed. The facts of the case are stated in the opinion of the court. The Circuit Court decided in favor of the defendant upon two grounds: 1st, that the protest was sufficient; 2d, that the action was prescribed. It was argued in this court by Mr. Benjamin for the plaintiff in error, and by Mr. Janin for the defendant. Upon the first ground, Mr. Banjamin said: I. The protest was insufficient. Calling at the office of the acceptors of a bill, and finding it closed, is not such due diligence as will excuse the want of presentment and demand. There should have been inquiry, and effort should have been used to discover the dwelling, and demand made there, if found. The necessity for due diligence is not questioned, but cases are cited, in the opinion of the court, to show that the action of the notary was sufficient to constitute due diligence. These cases seem to us not to warrant the inference drawn by the court, but rather to establish the reverse. In the case of the Union Bank v. Foulkes, 2 Sneed Tenn. Rep., the court held, that want of presentment and demand was excused, because the place of business was open, but no one had been left there to answer; the court expressly stating that if it had been closed, further diligence would have been necessary. In the case of Shed v. Brett, 1 Pick., 413, the court held that plaintiff must be nonsuited, if the demand at the place of business was not proven to have been made in business hours; the protest in the present case does not allege any visit in business hours. In the case of the Branch Bank at Decatur v. Hodges, 17 Ala. Rep., 42, there was actual presentment and demand of the book-keeper of the acceptors at their counting-room. In the case of Brown v. Turner, 15 Ala. Rep., 832, there was actual demand of the agent of one partner, both partners being absent. In Watson v. Templeton, 11 Annual Rep., 137, the court held, that as against a partnership, the want of demand was excused where the bill was presented at the commorcial domicil, within the usual business hours, but reserved its opinion as to cases where a person does business alone, and has a dwelling as well as a place of business which is found closed. In support of this distinction between bills accepted by a firm and those accepted by individuals, the court cites Story on Promissory Notes, sec. 235; but we have sought in vain in the authority referred to, and elsewhere, for anything to sustain this distinction, which seems to be quite a novel doctrine in the law of bills and notes. In Williams v. Bank of United States, 2 Peters, 96, and the case of Goldsmith and Bland therein cited and approved, there was, in the former case, further inquiry and information received, that the party and his family had left town on a visit; and in the latter there was no person in the countinghouse in the ordinary hous of business, but the countinghouse is not stated to have been closed, the implication being, on the contrary, that it was open. The foregoing are all the authorities cited in the opinion of the Circuit Court, no one of which goes the length required to sustain the validity of the protest now in dispute. The authorities to show its insufficiency are very numerous. In McGruder v. Bank of Washington, 9 Wheaton, 601, there was no decision directly on the point; but the court said, in its reasoning, that the notary might, 'had the house been shut up, with equal correctness have returned that he had not found him, (the drawer,) and yet that clearly would not have excused the demand, unless followed by reasonable inquiries. In Granite Bank v. Ayres, 16 Pick., 392, demand was made at the last place of business, and notary was informed that the parties had failed and gone out of town. They had in fact failed, and given up their place of business, but one of them lived in town. Held, diligence insufficient, no further inquiry having been made by notary. In Ellis v. Commercial Bank of Natchez, 7 Howard's Mississippi Rep., 294, held, that further inquiry must be made when the place of business is found shut, in order to excuse want of presentment and demand. In Follain v. Dupre, 11 Rob., 470, held, that going to the counting-house during the usual business hours, waiting a short time, and, no one being there, coming away, is not sufficient to excuse presentment for acceptance, and doubtful if sufficient to excuse want of presentment for payment. In Collins v. Butler, 2 Strange, 1087, held, that when place of business is found closed, further inquiry for the drawer of a note or an attempt to find him must be shown, in order to excuse want of demand. The rule as laid down by all the text writers is, that if the acceptors have absconded, and cannot be found, presentment and demand being impossible, the want of them is excused; but even where the acceptor has become bankrupt, or has removed to another place within the same State, or is absent on a journey, yet, if he has a dwelling, demand must be made there, in order to hold the other parties. Story on Promissory Notes, secs. 237, 238. Story on Bills, secs. 351, 352. Byles on Bills, pp. 141, 159. Chitty on Bills, pp. 355, 383. The only cases where want of inquiry and effort to find party have been excused, are those where a place of payment is designated in the bill or note. Hine v. Alleby, 4 B. and Ad., 624. Buxton v. Jones, 1 Man. and Gran., 83.

Per curiam.

Mr. Janin referred to the following cases quoted by the Circuit Court, namely:

Union Bank v. Foulkes, 2 Smead Tenn., 555.

Shed v. Brett Trustees, 1 Pick., 413.

Br. Bank at Decatur v. Hodges, 17 Ala. Rep., 42.

Brown v. Turner, 15 Ala. Rep., 832.

Burbank v. Beach, 15 Bak., 326.

The Louisiana case referred to by the Circuit Court, but not quoted, is the case of Watson v. Templeton, 11 Ann. Rep., 137.

Again, in Nott's Ex'r v. Beard, La. Rep., 308, the notary certified, that '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,' &c. The counsel for the defendant contended that the protest should say that the bill was presented, and payment thereof demanded. The court held that this was not necessary, and said: 'We are disposed to give such meaning to terms used by public officers as will be understood by the mass of mankind.'

'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 that they do their duty.'

The following English cases support the same doctrine:

In Burton v. Jones, 1 Man. and Gr., 89, C. J. Tindal said:

'This bill drawn upon Epworth is addressed to him as Mr. Frederick Epworth, Ilnito St., Baal-Zepher St. Bennondsey. The drawee accepts generally, thereby adopting the description of his residence, as stated at the foot of the bill. When the bill becomes due, a messenger is sent to demand payment. The messenger inquires for Epworth of a person who must be taken to be an inmate, and from that person he receives an answer, which is true. It was not necessary to present the bill to Epworth personally. If he chose to remove from the house pointed out by the bill as his place of residence, he was bound to leave sufficient funds on the premises. In Hine v. Alleby, (4 B. and Adol., 624,) the holder went to the place at which the bill was addressed, and found the house shut up. This was held to be sufficient evidence of presentment.'

In Hine v. Alleby, (4 B. and Adol., 627, and 24 Engl. Common Law Rep., 127,) it was shown that on the day when the bill became due, it was taken to the place of payment, but the house was shut up, and no further presentment could be made. The court held that there was a presentment. The case of Burbridge v. Marmers, 3 Campbell, 183, was cited, and it was urged that there Lord Ellenborough said: 'I think the note was dishonored as soon as the maker had refused payment on the day when it became due;' and that here (that is, in Hine v. ...

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