Curry v. Bank of Mobile , 8 Port. 360 ( 1839 )

ORMOND, J.

— The questions of law which are made in this case, arise on a judgment obtained by the the defendant in error, against the plaintiffs in error, on motion upon what is called in the record, a demurrer to the evidence.

The errors assigned are—

1. That the notice is not such as is required by law, being by the attorney at law of the bank, and not under the corporate seal.

2. The court erred in overruling the demurrer to the evidence.

The last assignment of error will be first considered^

It is impossible to consider the demurrer in this case, a demurrer to evidence. The office of a demurrer to evidence, is to withdraw from the jury the consideration of the facts offered in evidence, to maintain the issue which the jury were empanneled to try, and to refer them to the court. It is, in effect, the substitution of the court for the jury.

The statute under which this proceeding is had, requires the court, if the claim is contested, to empannel a jury to try the issue between the parties.' But in this case, it does not appear from the record, that any issue was tendered, or that a jury was empanneled. There could not, therefore, be a demurrer to the evidence.

As, however, the act upon which this proceeding was had, authorised the court to render judgment without the intervention of a jury, we may consider the statement of facts which appears in the record, as an agreement of record of the facts upon which the judgment of the court was pronounced, and thus give effect to what appears to have been the intention of the parties, by what is called in the record, a demurrer to evidence.

The facts thus set out, are the note on wlfich the motion is founded, with the endorsements thereon, and the protest of the notary for the non-payment of the note. The record then proceeds to state, that “ upon the above proof, the plaintiff moved the court for judgment, and produced the notice, with the certificate of the president of the bank endorsed thereon.” It further appears, that the court permitted the plaintiffs below to strike out the endorsement of S. Roulston, it being the second endorsement, and preceding that of the defendant below, though objected to by him.

The sufficiency of this evidence to maintain the action, and also the right of the plaintiffs below to strike out an endorsement previous to that of the plaintiffs in error, 'will now be considered.

The note on which the motion is founded, is made by S. Roulston, and is payable to the order of A. H. Gazzam. It appears to have been endorsed by A. H. Gazzam, S. Roulston, James Curry Co. and S. Roulston.

It is insisted by the plaintiffs’ counsel, that S. Roulston, the endorser, is the same person as S. Roulston, the maker; that therefore, the note, after having been put in circulation by the endorsement of Gazzam, must have become the property of Roulston, the maker; which he contends was in law an extinguishment, and that the note could not afterwards be put in circulation.

The only evidence that this assumption is correct, is the similarity of the two names, and we do not think this of itself sufficient. It might certainly lead to a suspicion, that the two names indicated the same person, but it does not, in our opinion, amount to such a violent presumption, as to be prima fade evidence of the fact. It is also open to the objection, that it is not the best evidence in the power of the party to adduce. If they be in fact, the signature of the same person, nothing could have been easier than to have proved it beyond doubt; whereas, in the aspect in which the question is now presented, the only evidence of their .being the signature of the same person, is, that the two names are spelled alike. Such remote analogies are too uncertain to be the foun-’* dation of a judgment, especially in a case where better evidence could have been had.

The objection, therefore, that the note was extinguished, by becoming the property of the maker, and that it could not again be put in circulation, does not arise in this case; and for that reason we refrain from expressing any opinion on that question, as also because we are informed that this point will directly arise in other cases now pending.

Jt is also contended by the plaintiffs’ counsel, that the protest does not state from whom payment was demanded, nor what was the reply .to the demand made; and that for that reason, it is insufficient. The protest states, that payment of the note was demanded at the proper time and at the proper place, ancl that it was protested for non-payment, which could not have been done, if the payment had npt been refused, or neglected to be made.

It is also insisted, that the certificate of the notary, that he had given notice to the other, parties to the note, is insufficient. The certificate is in these words: “ I, Charles .A. Marston, notary as aforesaid,' do further certify, that the endorsers have had due notice of the demand and non-payment, and protest of said note, by notice in writing, directed by me as follows: ‘ To the endorsers — and left at their offices.’” It is supposed, that the notice being given on the day the note was protested, was given too soon; but if is well settled, that notice of the dishonor of a note may be given on the same day the protest is made, and must be given on the next day, or placed in the post office, to be sent by the next mail, in the ordinary course of business.

The language used by the notary, in setting forth that he had given notice to the endorsers,, has also been objected to; but we do not think it obnoxious to the criticism-which has been made on it. He says that he gave notice in writing, of the demand, non-payment and protest, to the endorsers, “ and left at their offices.” It is objected, that he should have described the place where the notices were left, without undertaking to decide whether the place was the office of the person so notified or not.

If the notice had been sent by mail to a distant post office, it would certainly have been necessary for the notary to have stated the place to which the letter, containing the notice, was directed. But where, as in this case, the parties living in the same town, a notice is left at the place of business of the individual, it is sufficient to describe it as the office of the person so notified.

The certificate of the notice which the notary is au-thorised to make, was designed by the statute to be pri-ma facie evidence only of the fact recited; and if the notary leave the notice at the wrong place, the fact may be controverted, notwithstanding he may have certified that it was properly left. There is, therefore, no objection to the protest.

The court below permitted the defendant in error to strike out the name of the second endorser, (S. Roulston,) though objected to by the plaintiff in error.

In this, the court erred. The holder of a note ór bill of exchange, cannot be permitted by any act of his, to prejudice the right of any party to the instrument, to whom he looks for payment. If a recovery could be had on this note, against the plaintiff in error, as endorser, he would have a right of action against his immediate endorser; and it is very clear,- that the holder cannot impair or abridge this- right. The holder has property in the note, and dominion over it,- and may release any or all the parties to it; but he cannot be allowed to exercise this privilege, to the prejudice of another’s right. The same rule which obtains in favor of a surety, when the creditor, by arrangement with the principal debtor, without the consent of-the surety, prolongs the time of payment, or changes the nature of the contract, applies to the discharge of a prior endorser. The deliberate cancellation, by the holder of the endorsement, must-discharge the liability of such endorser to the holder, and so operating, it will also discharge from liabilty to the holder, the subsequent endorser. ■

These principles are fully maintained in the following cases—(Brown vs. Williams, 4 Wendell’s R. 360; James Lynch vs. Reynolds, 16 Johns. R. 41; Sargent vs. Appleton, 6 Mass. R. 88; English vs. Dailey, 3 Espinassie’s R. 49.)

It may be, that the endorsement of S. Roulston is open to explanation. He may be an accommodation endorser, for the plaintiff in error, and not responsible to him in any event; or, the name of S. Roulston may be on the paper, - not strictly as endorser, but to indicate to the bank discounting the paper, his ownership of the note. But nothing of that kind appears in the record, and we must judge of the legal effect of the endorsement, from the predicament of the record, as presented to us. These remarks are made, to prevent any conclusion from being drawn, which the opinion is not intended to warrant.

The record further states, that 'the plaintiff in error “ produced the notice, with the certificate of the president of the bank endorsed thereon;” whereupon the defendant, by his counsel, objected, &c. The notice and certificate here recited to have been produced, must, we think, be taken to refer to the notice and certificate, which are sent up with the transcript, and, by reference to them, we find them to be sufficient.

In the case of Bates vs. the Planters' and Merchants’ Bank, (page 99,) to which we have been referred, there was no recital in the judgment, that either the certificate or notice were produced to the court; and we there held, that we could not infer that the notice and certificate sent up with the transcript, were those on which the court acted, as it did not appear that any notice or certificate had been produced to the court, or any action of the court had upon them. But we held, that appearing and contesting the claim, was evidence of notice.

In cases of this summary character, the judgment, whether by default or otherwise, must shew affirmatively every fact necessary to give the court the summary jurisdiction. In judgments by default, the liability of the defendant for the debt, must also be shewn. Where an issue is made up, the verdict will ascertain the defendant’s liability, as in other cases, in suits brought in the ordinary mode; and it is unnecessary to encumber the record either with the proof or fact of notice, or of those facts which constitute the liability for the debt. Should either party desire to reserve the legal sufficiency of the facts, it can be done by bill of exceptions, or by demurrer to the evidence. As to the terms of the notice required by the statutes in these summary proceedings, the law was correctly laid down by the court in the case of Lyon vs. the State Bank, (1 Stewart, 466.) “A notice in writing, which so far identifies the debt for which judgment will be moved, as to afford reasonable certainty, is deemed sufficient.”

We are induced to give this as the result of all the adjudged cases, on the statutes authorising these summary proceedings, from the great number of suits instituted in this mode since the increase of the banking capital of the State, and the uncertainty which seems to prevail on the subject.

The first assignment of error is not sustained. The objection to the notice is understood to be rested by counsel, on the terms of the charter of the bank; the substance of which, so far as it relates to this question, is, that the corporation may recover their debts in this summary mode, by giving ten days notice, &c.

It is contended, that as the charter of the bank requires the corporation to give notice, it cannot be done by the attorney at law of the corporation. It cannot be doubted, that a corporation can do an act in pais, by an attorney in. fact; and we can see no reason why the notice, which is but the commencement of a suit in this summary mode, should not be given by the attorney at law of the corporation, acting for, and on behalf of the corporation. A corporation can appear in court, by its attorney ; and it would be passing strange, if the attorney had not power to take the'first step in the cause.

In the case of Osborne vs. the United States Bank, (9 Wheaton, 738,) it was held, that the authority of the attorney to appear in court, need not be under the corporate seal; and in the case of the Bank at Montgomery vs. Harrison, (2 Porter, 540,) that the notice required by the charter of the bank to obtain a" judgment by motion, did not require the corporate seal to give it authenticity.

The ancient rule applied to corporations existing by the common' law, that they could only act through their common seal, has no application when applied to corporations created by statute. The very frame of our banking institutions supposes that their acts will be done by agents, and it would be intolerable, if not impossible, to require their authentication by the seal of the corporation.

For the error of the court below, in permitting the defendant in error to strike out the name of S. Roulston, (who appears on the record, as second endorser of the note,) without explanation, or any sufficient reason being given therefor, — the judgment is reversed, and the cause remanded, for further proceedings in the court below.