Ticonic Bank v. Stackpole , 41 Me. 321 ( 1856 )

Appleton, J.

By R. S., c. 44, § 12, it is enacted that “ 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, shall be legal evidence of the facts stated in such protest, and also as to the notice given to the drawer or indorser in any Court of law.”

From the protest of the notary public, which by agreement is made part of the case, it appears, that on the last day of grace, having the note in suit, he went to the Ticonic Bank where the same was payable, and presenting the same to the cashier, demanded payment thereof which was refused, the cashier saying there were no funds there to meet it; and that on the same day he duly 'notified James Stackpole, Esq., (the defendant,) indorser of said note, of said non-payment. The notice to the indorser, so far as regards time, was duly made, for it was made on the same day the note was protested.

The indorser was notified of “ said non-payment,” that is of the non-payment of the note in suit, after presentation at the bank where the note was payable. “ A waiver of notice,” remarks Johnson, J., in Youngs v. Lee, 2 Kerwan, 554, “ was held in Caddington v. Davis, (1 Coms. 186,) to include demand and all other acts in law necessary to charge an indorser. Upon the same principle, the statement in this notice, dated on the day when the note was payable, must be intended to mean that it had been demanded and payment refused upon the day when it became due.” In the present case, the indorser was seasonably notified of all the facts necessary to be communicated to fix his liability.

The protest, which is the language of the notary, is, “I duly notified James Stackpole, indorser of said note, of said non-payment.” It is objected, that it does not appear in what mode the notice was given, as whether it was verbal or written, and reliance is placed by the learned counsel for the defence upon the case of Bradley v. Davis, 26 Maine, 45, in which Whitman, C. J., intimates, if the certificate of the notary were to be taken as conclusive, that it should appear in the protest whether the notice was verbal or in writing, and, if in writing, how the same was transmitted or where it was left.

In this case there is no qualification of the word “ notified,” as to the mode of notice. It is the act of the notary, and the notification is to the- indorser. In the absence of any qualification, it must be regarded as verbal, and that, as the defendant is a resident of the town where the note was payable, is sufficient.

The exception to the notice arises from the use of the word “duly” as qualifying the word “notified.” Had that word been omitted, it is not insisted that the protest would have been defective. But if, from the whole protest, it appear that in fact notice was legally given, the insertion of “ duly” cannot affect or impair the legal notice which otherwise the protest fully shows.

The notice was of all the facts required to charge the indorser. It was in due season, and the right of the plaintiffs to recover must be regarded as having been established.

Defendant defaulted,.

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