Statement of case.

COMMERCIAL BANK OF KENTUCKY, Respondent, v. JOSEPH B. VARNUM, Appellant.

A bill of exchange drawn in one State upon a person or corporation resident in another is a foreign bill.

The rule of law requiring protest of a foreign bill of exchange is wholly founded upon the custom of merchants; and in an action against a notary for neglect to make presentment and demand, evidence that it is the common and universal usage at the place where the bill was payable for notaries' clerks to make such presentment and demand, and that the bill in question was presented and demand of payment made by the clerk of the defendant, is proper and admissible. A knowledge, on the part of plaintiff, of this usage is not necessary to its validity. The act of 1857 (chapter 416, Laws of 1857), in relation to commercial paper, only abolishes grace upon bills which are, on their face, payable on a specified day, or in any number of days, or sight thereof after the date." It does not include bills payable upon their face in months or years.

A notary is not presumed to be a lawyer who is to revise or reverse the decision of his employer as to the character of a bill, and as to whether it is entitled to days of grace or not. If, therefore, a bill is delivered to him with directions to make demand and protest upon the wrong day, a right of action does not arise against him on account of the error.

(Argued April 9th, 1872; decided April 30th, 1872.)

APPEAL from judgment of the General Term of the Supreme Court in the first judicial department, affirming a judgment in favor of plaintiff entered upon the decision of the court upon trial at circuit without a jury. (Reported below, 3 Lans., 86.)

The action is brought against defendant as notary public for alleged neglect in presenting, demanding payment and protesting a bill of exchange.

Defendant was a notary public in the city of New York and was the duly appointed notary of the Metropolitan Bank in said city, and employed by it to transact all the business of said bank in protesting commercial paper requiring the employment of a notary.

On or about the 4th day of September, 1860, W. H. Barkesdale & Co., a firm doing business in St. Louis, Missouri, drew

Statement of case.

their draft, dated at St. Louis, upon the Park Bank, New York, for the sum of $10,000, payable to the order of John F. Darby, four months after date. Darby indorsed the draft and it was discounted by plaintiff. The plaintiff sent the draft, indorsed by its president, to the Metropolitan Bank, of the city of New York, for collection.

On the 5th of January, 1861, the Metropolitan Bank delivered the draft to defendant for demand and protest.

The defendant was at that time in partnership "in the law and notarial business" with P. W. Turney, and the firm were attorneys of the Metropolitan Bank. Mr. Turney was also a notary public. Mr. Turney took the draft in question, which he presented at the Park Bank and demanded payment; payment was refused.

On the same or the next day the defendant made out a certificate of protest and notices for the drawers and indorsers and sent the same by mail to plaintiff, at Paducah, to Barkesdale & Co., at St. Louis, and sent the notice for Darby and a duplicate for the drawers to plaintiff at Paducah.

The draft and protest were returned to the Metropolitan Bank, and on the seventh day of January the cashier of that bank mailed the same to the plaintiff at Paducah.

The plaintiff failed to notify the indorser, Darby, till about or nearly a month after the date of the notice sent to plaintiff, when it sent that notice to Darby through Barkesdale & Co.

Barkesdale & Co., the drawers, were insolvent in January, 1861, but Darby, the indorser, was solvent. The plaintiff brought suit in the Common Pleas, St. Louis, and was beaten, but on what ground does not appear.

Evidence was given on the trial to establish the custom, in New York, to present such bills by clerks of notaries and protest the same on such presentation. This evidence was stricken out and excluded by the court under defendant's exception.

The defendant's counsel also offered to prove a universal usage and custom in the city of New York, among all persons connected with or transacting business with bankers or banks

Statement of case.

therein, and with notaries public therein, to protest all foreign bills of exchange, drafts, etc., upon the presentment and demand of payment by a clerk or agent of the notary employed for that purpose. The court refused to receive the evidence, and defendant's counsel excepted.

The court held, in substance, that the instrument delivered to defendant by the Metropolitan Bank was a foreign bill of exchange; that it must have been personally presented and demanded by defendant and protested by him; that the acts of Turney, as notary, did not amount to a valid protest by him, and that Turney's presentment and demand of the bill, as defendant's clerk or agent, did not warrant defendant in making his protest; that under the provision of the statute (3 R. S., 5 ed., § 37) declaring a notary liable, for misconduct in office, to any party injured thereby, the plaintiff was at liberty to sue defendant directly for its injury; that defendant was guilty of misconduct, within the meaning of the statute, in not presenting and demanding the bill in person. The defendant duly excepted.

Noah Davis for the appellant. Plaintiff's remedy is against the Metropolitan Bank only, not against defendant. (Allen v. The Merchants' Bank, 22 Wend., 215; The Montgomery Co. Bank v. Albany City Bank, 3 Seld., 459; The Commercial Bank of Pennsylvania v. The Union Bank, 1 Kern., 311; Denny v. The Manhattan Bank, 2 Denio, 115; S. C. in error, 5 Denio, 369; Hoard v. Garner, 3 Sandf., S. C., 179; Armstrong v. Garrow, 6 Cow., 465; Gorham v. Gale, 6 id., 467; Corning v. Southland, 3 Hill, 552; Walters v. Sykes, 22 Wend., 566; Mickles v. Hart, 548; Yates v. Brown, 8 Pickens, 23; Bunoy v. Donaldson, 4 Dod., 206; Williamson v. Pierce, 16 Martin, 399; Cameron v. Reynolds, Cowp., 403; Downer v. Madison Co. Bank, 6 Hill, 548; Calvin v. Holbrook, 2 Com., 126; Denny v. Manhattan Co., 2 Den., 218.) Defendant is not chargeable with misconduct. (Turnbull v. Martin, 37 How., 20; Smith v. Cutler, 10 Wend., 589; 24 Barb., 149; 9 John., 212; 13 East, 357; 1 J. Ch.,

Statement of case.

101; Ex parte Garland, 4 Wall., 333; 22 Barb., 595; 6 Met., 26; Gilbert v. Williams, 8 Mass., 57; Chapman v. Walton, 10 Bing., 57; Levninch v. Meigs, 1 Cow., 645; Lease v. Freuben, 1 East., 348.) The presentation and demand were lawful and sufficient, and protest regular. (Cowperthwaite v. Sheffield, 1 Sand., 449; 3 Cow., 243; Bank of Rochester v. Gray, 2 Hill, 227; Brookes' Notary, 97, 100; Chitty on Bills, 477; Story on Bills, § 302; Chartres v. Bell, 4 Esp., 48; Orr v. Maginnis, 7 East.; Rogers v. Stevens, 2 Term, 713; Robbins v. Gibson, 1 Maule & S., 271; Cayuga Co. Bank v. Hunt, 2 Hill., 635; Bailey v. Dozier, 6 How. U. S., 23; 17 id., 606; Byles on Bills, 203, 204; Halliday v. Martinett, 20 Johns., 168; Sheldon v. Benham, 4 Hill, 131; Poole v. Decas, 1 Scott, Com. Pleas, 600; id., 1 Bing. N. C., Com. Pleas, 649; Sutton v. Gregory, 2 Reapes' N. P., 150; Geralopulo v. Weiler, 1 Scott, C. B., 690.) A foreign bill of exchange need not be presented and demanded by a notary in person. (Brookes' Notary, 530; 3 Kent's Com., 93, 94; Chitty, pp. 364, 365; Bank of Rochester v. Gray, 2 Hill, 227; Wilkins v. Jadis, 2 B. & A., 188; Ganutt v. Woodcock, 1 Stark., Ni. Pri., 475; A. M. & S., 44; Triggs v. Newman, 1 C. & P., 613; 10 Moore, 249; Philpott v. Bryant, 3 C. & P., 244; Poole v. Dicas, 1 Bing., 649; Sulton v. Gregory, 2 Peake N. P., 150; Nelson v. Follerd, 7 Leigh, 179; Saendor v. Brown, 2 McLean, 243; McClure v. Fitch, 4 B. Monroe; Cribbs v. Adams, 13 Gray, 597; Chermowith v. Chamberlain, 6 B. Monroe, 61.) Proof of usage was admissible. (Mills v. Bank of U. S., 11 Wheat., 421; Bank of W. v. Triplett, 1 Pet., 25; Hinton v. Lock, 5 Hill, 437; Outwater v. Nelson, 20 Barb., 29; Wadsworth v. Alcott, 6 N. Y., 64.) A statute in derogation of the common law is to be strictly construed. (Coke Inst., 282; 6 L., 3, § 485; Bushing v. Bushnell, 6 Hill, 382; Benjamin v. Benjamin, 1 Seld., 383; People v. Hadden, 3 Denio, 220; Rue v. Alter, 5 Denio, 119; Portwardens v. Cadwright, 4 Sanf., 236; White v. Wager, 25 N. Y., 328; Winans v. Peebles, 32 N. Y.; Seymour v. Judd, 2 Comst., 464.) At common law, days of grace are part of the contracts.

Statement of case

(Bank of W. v. Triplett, 1 Pet., 25.) The bill is not a foreign one within the meaning of the law. (Merchant Miller v. Hackley, 5 Johns., 375; 7 How. U. S., 408-492; 2 Par. on Bills, Appendix, 13.

Thomas G. Shearman for the respondent. The bill was a foreign bill of exchange. (Buckner v. Finley, 2 Pet., 586; Dickins v. Beal, 10 id., 572, 579; Bank of U. S. v. Daniel, 12 id., 32, 54; Phoenix Bank v. Hussey, 12 Pick., 483; Chenowith v. Chamberlin, 6 B. Monr., 60; Rice v. Hogan, 8 Dana, 133, 134; Green v. Jackson, 15 Me., 136; Freeman's Bank v. Perkins, 18 id., 292; State Bank v. Hayes, 3 Ind., 400; Aborn v. Bosworth, 1 R. I., 401; Commercial Bank v. Barksdale, 36 Mo., 563; Bank of Cape Fear v. Stinemetz, 1 Hill [S. C.], 44; 3 Kent's Com., 63; Halliday v. McDougall, 22 Wend., 264, 272; Carter v. Burley, 9 N. H., 558, 566; Brown v. Ferguson, 4 Leigh, 37, 51; Mahony v. Ashlin, 2 B. & A., 478; Milne v. Graham, 1 B. & C., 192; Reynolds v. Syme, Fac. Coll., 1774; Ferguson v. Belch, id., June 17, 1803; Bell's Com., 419.) The notary's protest is sufficient evidence of dishonor of a foreign bill. (Townsley v. Sumval, 2 Pet., 170; Bryden v. Taylor, 2 H. & J., 396.) Such a protest is indispensable to charge endorser. (Chanoine v. Fowler, 3 Wend., 173; Gale v. Walsh, 5 T. R., 239; Phanix Bank v. Hussey, 12 Pick., 483; Commercial Bank v. Barksdale, 36 Mo., 563; Union Bank v. Hyde, 6 Wheat., 572.) A notary must personally present a bill which he intends to protest. He cannot delegate his authority to a clerk or agent. (Onondaga Bank v. Bates, 3 Hill, 53; Hunt v. Maybee, 7 N. Y., 266; Chenowith v. Chamberlin, 6 B. Monr., 60; Carmichael v. Bank of Penn., 4 How. (Miss.), 567; Sacrider v. Brown, 3 McLean, 481; Commercial Bank v. Barksdale, 36 Mo., 563; Cribbs v. Adams, 13 Gray, 597; Warnick v. Crane, 4 Denio, 460.) The evidence of custom was inadmissible. (Allen v. Merchants' Bank, 15 Wend., 482; Edie v. East India Co., 2 Burr, 1216; Woodruff v. Merchants' Bank, 25 Wend., 673; SICKELS-VOL. IV.

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