Citation Numbers: 2 Hill & Den. 227
Judges: Cowen
Filed Date: 1/15/1842
Status: Precedential
Modified Date: 1/12/2023
By the Court,
This is an action by the second against the first endorser of a foreign bill of exchange, drawn at Rochester, N. Y., on B. Williams & Co. of Boston, Massachusetts. The bill was at thirty days from date, and was presented by a Boston notary for acceptance several days before maturity. Acceptance was declined, and a certificate of protest for non-acceptance drawn up in due form by the notary. The same certificate stated the due transmission of the proper notices to the drawer and endorsers; but the notary’s seal was not impressed upon wax, wafer or any tenacious substance. It was stamped upon the paper. Independently of this certificate, no sufficient proof of notice to the defendant was given on the trial.
It was suggested in argument that the bill should have been presented for payment; but this was clearly unnecessary, if notice of non-acceptance was proved. (Chitty on Bills, 372, Am. ed. of 1839.)
The other points presented are much more difficult. . The first is, that the notarial protest was without any seal in the common law sense of the term. No local law of Massachusetts is shown, giving it the force of a seal in that state. The 2 R. S. 325, 2d ed. § 75, authorizing seals of courts and officers to be made by a direct impression on paper, has no force beyond our own territory. These things being so, I apprehend we cannot recognize the stamp in question as a seal, consistently with Warren v. Lynch, (5 John. R. 239.) True, the protest professes to be sealed, but the note in Warren v. Lynch professed the same; and the scrawl “(L. S.)” was conceded to be valid as a seal in Virginia where it was made: yet held, that it was inoperative as a seal here, because not impressed on wax, wafer, or some other tenacious substance.
On these books I should doubt a good deal whether any seal be necessary by the English law to authenticate the original protest, were it not for a late learned work which has expressed itself very strongly that it is, and that too when speaking of a protest for non-acceptance. (Brooke's Office of Notary, 73, Lond. ed. of 1839.) At a previous
But whatever be the rule as to the frame of the original, when the protest or an authenticated copy comes as evidence, it must claim to be received upon the footing of the lex fori. (Story’s Confl. of Laws, 526, 2d ed. § 634, a, to 635, d, and the cases there cited. Brown v. Thornton, 6 Barn. & Adolph. 185.) And it would be going too far to say, contrary to what is believed to be the universal practice, that a protest, purporting to have been made by a notary, should be received as evidence, per se, without a seal. In The King v. The Scrivener’s Company, (10 Barn. Cress. 518,) Lord Tenterden said, “many documents pass before notaries, under their notarial seal, which gives effect to them, and renders them evidence in foreign courts’* In Las Caygas v. Larionda’s Syndics, (4 Mart. Lou. Rep.
Suppose the protest had been duly authenticated, was the addition of a certificate stating notice of protest to the defendant admissible ? It was said to be evidence by Johnson, J. in Cape Fear Bank v. Stinemetz, (1 Hill’s Law Rep. S. Car. 45;) and what I said in Halliday v. McDougall, (20 Wend. 85,) is now relied upon, and perhaps rightly, as intimating an impression that he was right. The point decided in the last case was, however, that the giving of notice being the usual, not official duty of the foreign notary, and he being dead, the entry in his official record of notice being sent might be received by way of memorandum as secondary evidence. I admitted that it might not be his official business; and instituted no particular examination whether it was or not. The learned counsel for the plaintiffs has not been able to furnish any thing more than what I there mentioned, going to support the notary’s certificate as evidence of notice. I have been equally unsuccessful after considerable search. On the contrary, I find it expressly asserted in Brooke’s Office of Notary, pp. 79 and 139,) that the giving of notice is no part of his province or duty as notary. In the late case of Fitler v. Morris, (6 Whart. 406, 415, March T. 1841,) this very question was a good deal considered- by the supreme court of Pennsylvania; and they held, that though by the local law of that state, the giving of notice is a notarial
It is scarcely necessary to observe, that our statute, (Sess. 56, p. 395,) relative to proof of notice by certificate, applies to none other than notaries of this state.
There must be a new trial; the costs to abide- the event.
New trial granted.
As to the doctrine of the several states in respect to what constitutes a seal, see Cowen & Hill’s Notes to Phil. Ev. 1277 to 1281
And see Douglass et al. v. Oldhamt (6 N. Hamp. Rep 150;) Trasher v. Everhart, (3 Gill & John. 234;) Steele v. Curie, (4 Dana's Rep. 382, 3.)
As to the local law of Alabama, see Whitman, &c. v. The Farmers’ Bank of Chattahoochie, (8 Porter’s Rep. 258.)
See Dunn v. Adams et al. (1 Alab. Rep. 527, new series.)