Ticonic Bank v. Stackpole , 41 Me. 302 ( 1856 )

Cutting, J.

In argument the plaintiff abandons his claim to damages on the draft of June 5 th, 1854, and the defendant all opposition to a recovery on the note of July 22d, 1855. In relation to the other note of Sept. 14th, and the two drafts of Sept. 4th and 19 th, 1854, the defendant contends, that he has received no legal notice of their being dishonored; because the evidence, by which such notice is attempted to be shown, is not that required by statute; that instead of the original protests, certified copies of them only are made admissible.

Prior to the R. S., of 1841, c. 44, § § 6 and 12, no protest of an inland bill of exchange, note or order was receivable in evidence as proof of the facts therein certified; such facts could only be established by the testimony of the notary himself taken in the form of a deposition, or elicited from him on the stand, subject to cross-examination; except in case of his decease or being beyond the jurisdiction, when his records were admissible upon the common law principle, as being the next best evidence, and by the statute of 1821, c. 101, for the same reason. Holmes v. Smith, 16 Maine, 181.

But by the common and commercial law the protest of a foreign bill of exchange was indispensably necessary, with certain exceptions, to fix the liability of the prior parties. “And the certificate of a foreign notary under his hand and official seal of the presentment of a foreign bill for acceptanee or payment, and of his protest thereof for non-acceptance or non-payment, is received in all courts by the usages and courtesy of nations.” Such protests are presumed to be in accordance with the law of the place where made; they prove themselves, and their contents are to be received as true ; and the several States of our Union in this particular are considered foreign to each other. 3 Kent’s Com. 93; Chitty on Bills, (ed. of 1836,) p. 642; Townsley v. Sumrall, 2 Peters, 170; Holliday v. McDougal, 20 Wend. 81.

Such was the law of this State in relation to foreign and domestic bills, until the enactment of 1841, c. 44, before referred to; when, by the 12th section, “the protest of any foreign or inland bill of exchange, or promissory note, or order, duly certified, by any notary public, under his hand and official seal, was made legal evidence of the facts stated in such protest, as to the same, and also as to the notice given to the drawer or indorser, in any court of law.” This section was in affirmance of the common law relating to foreign bills, and embraced within its provisions all inland bills, notes and orders, so as to render all subjects of protests, and all protests alike receivable as evidence, a provision that should receive the approbation of the commercial community, as being a sure and expeditious mode of procuring and perpetuating testimony.

It is contended, however, by the defendant, that although the plaintiff has complied with the requirements of the 12th section, yet the original protest is not admissible to charge him, and he relies on the 6th section, which provides that “ every notary public shall record at length in a book of records, all acts, protests, depositions, and other things, by him noted or done in his official capacity, and that all copies or certificates, by him granted, shall be under his hand and notarial seal, and shall be received as evidence of such transaction.” This section refers to two species of evidence, viz., copies and certificates. A copy is a transcript from an original; whereas, a certificate is a declaration in writing, which, when under the hand and seal of the notary, becomes his protest, and is by the 6th section denominated a certificate, and by tbe 12th a protest; the former before, and the latter after authentication, when they become the same thing.

Under either section, therefore, the protests were legally admissible, and, with the testimony of the cashier, are sufficient to fix the indorser.

We might, if it were necessary, come to the same conclusion upon other considerations.

The drafts being made payable in another State, are foreign bills of exchange. Bank of U. S. v. Daniel, 12 Pet. 32; Warren, v. Warren, 16 Maine, 259.

A note payable at a place in another State, in a suit against the indorser, may, so far as to admit the protest as evidence, be treated as a foreign bill. Carter v. Burley, 9 N. H. 558, and cases there cited, and subsequently confirmed in a series of decisions by that court.

Consequently the protests of the notaries, residing in the State where the paper was payable, were legally admissible by the common law, independently of any statute regulation of this State.

In relation to the question of usury, we are of opinion that the testimony fails to establish that fact. And according to the agreement of the parties, the defendant must be defaulted and judgment rendered for the amount of the notes and drafts, (except the one on C. A. Blanchard & Co.,) with interest from the time they severally matured, damages at the rate of three per cent, and costs of protests.

Tenney, C. J., and Rice, Appleton, and May, J. J., concurred.