Riggs v. McDonald

COLLIER, C. J.

— The memorandum wriLten across the face of the bill, clearly indicates, a presentment to, and a refusal by the drawees to accept. When it is proposed to protest a bill for non acceptance, the holder places it in the hands of a notary, who presents it to the drawee, and demands acceptance, and if the drawee refuses to accept, the notary usually makes a minute on the bill, consisting of his initials, the month, the day and year, and the reason if assigned, for non acceptance. This minute is usually termed noting the bill, and though it is unknown in the law, as distinguished from the protest, and will not in anjr ease, dispense with a protest, yet is a preliminary step which has grown into, practice. (Chitty on Bills, Beebee’s ed. of 1836, pp. 362, ’3.)

True, no evidence of a protest for non acceptance was introduced in the county court, by the defendant, yet the memorandum on the bill, in the absence of any explanation, furnished presumptive proof of a presentment to the drawees. It was not essential to the defence, that a protest should have been drawn up in form, but it was enough for the defendant to show prima facie that acceptance had been demanded and refused, no matter whether the evidence creating such a presumption was offered by the plaintiff or by himself. The presumption from the proof being such as we have stated, it was incumbent on the plaintiff to remove it, by explanatory evidence, or else to have shown that due nol'rce of the non acceptance was given to the defendant.

The memorandum, it has been remarked, does not appear to have been made by a notary. True, the individual making it does not give to himself any official designation, but as it is in form a noting for protest, and the bill prima facie, has been ever since it was drawn in the possession of the plaintiff, or some previous party, and is now offered by the plaintiff, he must abide the inference, that it was presented for non acceptance, before its maturity, or else explain away by proof, the effect of the memorandum.

The question raised upon the evidence, is not the common case of an addition to, or alteration of a writing; but if it were to be decided by analogous principles, the plaintiff would not perhaps occupy a more favorable position. It has been held, that if a bill, note, or other negotiable security, appear upon the face, to have been altered, it is for the holder to prove, and not for the defendant to disprove, that it was altered under circumstances which will make it still available. (Chitty on Bills, Beebee’s ed. of 1836, p. 212, and cases there cited: Ibid. 615: McMichen v. Beauchamp, 2 Miller’s Lou. Rep. 290.)

In Clark & Lindsay v. Simmons (4 Porter’s Rep. 14) it was held, that a credit endorsed on a note and erased, but not so as to render it illegible, was evidence of a payment, unless it was disproved, or its effect explained away by testimony. To the same effect is Benson v. Mathews. (7 Louisiana Rep. 356.)

In the case at bar, no proof having been adduced in the county court to destroy the inference from the memorandum on the bill, its judgment was rightfully reversed by the circuit court: and the consequence is, that the judgment of the circuit court is here affirmed.