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Statement of case.

Bowen v. Newell, 8 N. Y., 180; United States v. Buchanan, 8 How. [U. S.], 83, 102; Wheeler v. Newbold, 16 N. Y., 392; Higgins v. Moore, 34 id., 417; Beirne v. Dord, 5 id., 102; Otsego Bank v. Warren, 18 Barb., 290; Suydam v. Clark, 2 Sandf., 133; Brown v. Jackson, 2 Wash. C. C., 24; Coxe v. Heislay, 19 Penn. St., 243.) The usage must be known to the parties. (Franklin v. Smith, 21 Wend., 624.) The objection that bill was delivered for protest upon the wrong day was not raised upon the trial and cannot be raised here. (Judd v. O'Brien, 21 N. Y., 186; N. Y. Central Ins. Co. v. National Pro. Ins. Co., 14 id., 85; Barnes v. Perine, 12 id., 18; Jencks v. Smith, 1 id., 40.) The bill was properly presented on the fifth. (Salter v. Burt, 20 Wend., 205; Avery v. Sleevin, 2 Conn., 69.) Plaintiff could not sustain action against the Metropolitan Bank. (Warren Bank v. Suffolk Bank, 10 Cush., 582; Bellemire v. Bank of United States, 4 Whart., 105; Citizens' Bank v. Howell, 8 Maryl., 530; Tiernan v. Commercial Bank, 7 How. [Miss.], 648; Baldwin v. Bank of Louisiana,, 1 La. Ann., 13; Frazier v. New Orleans Gas Co., 2 Rob. [La.], 294; Agricultural Bank V. Commercial Bank, 7 Smedes & M., 592; Etna Ins. Co. v. Alton Bank, Ill. Sup. Ct.; and see East Haddam Bank v. Scovell, 12 Conn., 303; Jackson v. Union Bank, 6 Harr. & J., 146; Raney v. Weed, 3 Sand., 584.) A public officer, having a ministerial duty to perform, is responsible in damages to any person specially injured by his neglect to perform that duty. (Adsit v. Brady, 4 Hill, 630; Robinson v. Chamberlain, 34 N. Y., 389; Nowell v. Wright, 3 Allen, 166; Henley v. Lyme Regis, 5 Bing., 91; 1 Bing. N. C., 222; Clark v. Miller, 47 Barb., 38; Phillips v. Commonwealth, 44 Penn. St., 197.) It has been expressly adjudged that a notary is liable in such a case as this. (Bowling v. Arthur, 34 Miss., 41, 52; and see Franklin v. Smith, 21 Wend., 624.) If the Metropolitan Bank was liable, defendant was also liable. (Phelps v. Wait, 30 N. Y., 78; Foster v. Preston, 8 Cow., 198; Story on Agency, §§ 201, 217.)

Opinion of the Court, per PECKHAM, J.

PECKHAM, J. It is insisted by defendant's counsel that the presentment and demand of payment of the draft were properly made by a clerk of the defendant, the notary. This was a foreign bill of exchange, being drawn in the State of Kentucky upon a bank in the city of New York. This has long been settled by authority. (Dickens v. Beal, 10 Peters, 572; Bk. of U. S. v. Daniel, 12 id., 32; Phoenix Bk. v. Hussey, 12 Pick., 483; Buckner v. Finlay, 2 Peters, 586; Halliday v. McDougall, 20 Wend., 81; Same Case, 22 id., 264.) . It being a foreign bill, a protest was indispensable to a recovery against the indorser. (Halliday v. McDougall, supra, and cases there cited; Dennistown v. Stewart, 17 How. U. S., 606; Phonix Bk. v. Hussey, 12 Pick., 483; 3 Kent's Com., 2d ed., p. 93 and note.)

Has, then, a notary's clerk any authority to make the presentment and demand of payment of a foreign bill? This presentment and demand for the purpose of protest are practically of no moment to any one. Bills are always dishonored before they are handed to a notary to protest. They have always been first presented and payment refused, and are then delivered over for protest. (Chitty on Bills, 13th ed., 457.)

The only practical benefit to any one is the notice of the dishonor to the prior parties to the bill to enable them to protect themselves. It may possibly at some time be of some importance as evidence of the dishonor. Whether practically beneficial or not, however, as the law requires it, it must be done.

Conceding the rule at common law to be, in the absence of any custom or usage on the subject, that the presentment and demand must be made by the notary in person, was the testimony offered, of the universal usage in the city of New York for the clerk of the notary to make such presentment and demand, admissible?

It may be remarked that the usage of merchants has established the great body of the law in reference to bills of exchange

Opinion of the Court, per PECKHAM, J.

It gave grace to such bills, and thus changed the contract. It has settled the particular time of demand by the notary. The rule of law that requires a protest of a foreign bill is wholly founded upon the custom of merchants. (Denniston v. Stewart, supra.)

In the absence of any established rule of law in this State, by decision of the court or by any statute, requiring a demand to be made by the notary in person, it is not perceived why a usage such as was approved was not admissible as proof upon the subject. This was the view of the learned justice who tried this case, but he was of opinion that the law had been otherwise settled in this State. In this, I think, he was clearly in error. All the decisions referred to by him or upon the argument at bar were confined to the admissibility of certifi cates of protest, and notice of bills, and notes under the statute of 1833, p. 395. That statute made no provision as to what constituted a protest, but provided simply what the notary's certificate should prima facie prove, and had no reference whatever to the admissibility of this offered evidence or to the duties of notaries at common law in protesting a foreign bill. Such are Onondaga Co. Bank v. Bates (3 Hill, 53); Cole v. Jessup (9 Barb., 395; affirmed in this court, 10 N. Y., 96); Warnick v. Crane (4 Den., 460); Hunt. ▼. Maybee (7 N. Y., 266); Gawtry v. Doane (48 Barb., 148). The counsel for the plaintiff, to sustain the exclusion of this evidence, refers to Chenowith v. Chamberlin (6 B. Monr., 60); Sacrider v. Brown (3 McLean, 481); Commercial Bank v. Barksdale (36 Mo., 563, at 573); Cribbs v. Adams (13 Gray, 597); Carmichael v. Bank of Penn. (4 How. [Miss.], 567.) Neither case sustains his position. On the contrary, each one that speaks upon this point concedes the admissibility of the evidence and its controlling effect. The last case makes no allusion to the point. The practice in England is to present and demand by a clerk of the notary, and we are not referred to an English authority holding such presentment illegal where the usage so to present was established.

Chitty on Bills, in his last edition (10 Eng. ed., 355, note

Opinion of the Court, per PECKHAM, J.

4), sustains this usage, and says it is not questioned in any English case, and "is amply justified by the law of principal and agent." I take this from 1 Par. on Bills, 360, as this edition of Chitty is not accessible to me. This is said after correspondence upon and examination and discussion of the subject, and is free from the doubt in other editions, based chiefly upon a doctrine of Mr. Justice BULLER, in Lefthy v. Mills (4 Tr. R., 175), an action on an inland bill.

In Brookes' Notary of England (3d ed., 71), published in 1867, it is stated "before the protest is made it is the custom in England to cause the bill to be presented either by a notary or by his clerk (in general his clerk presents it), and acceptance to be demanded." As to the admission of usage, see Nelson v. Fotterale (7 Leigh, 179); Miltenberger v. Spaulding (33 Mo., 421); Commercial Bank of Kentucky v. Barksdale (36 id., 573).

It is said that this usage was not known to the plaintiff, and hence could not be obligatory upon it.

A knowledge by plaintiff of this usage was not necessary to its validity. The mode of making presentment and demand was of no sort of moment to the plaintiff. That mode could not have influenced the plaintiff's action. What the law requires as to a foreign bill is a protest, and all that the owner is interested in is that the protest should be legal.

In my judgment the evidence offered was competent, and should have been received. It is suggested that this usage was not admissible, as it was not set up in the answer. The rejection was not put upon that ground, but upon the broad merits. The question of pleading, therefore, is not considered, if there be anything in it, though I confess I do not perceive anything.

It is also urged that this bill was given to the defendant to present on the wrong day. That there was grace upon the bill, and hence it was due on the fourth and seventh of January, and not on the fifth, the day of its delivery for protest. It is probably a sufficient answer to this to say that no such point was raised at the trial. But as a new trial must

Opinion of the Court, per PECKHAM, J.

be had on other grounds, my brethren think an opinion should be expressed upon this point, as it has been fully discussed and will necessarily arise in the case.

The act, under which the plaintiff claims that grace was abolished, as to this bill, reads as follows: "All bills of exchange, appearing on their face to have been drawn upon any bank or upon a banking association or individual banker carrying on banking business," etc., "which are, on their face, payable on any specified day, or in any number of days after the date. or sight thereof, shall be deemed due and payable on the day mentioned for the payment of the same, without any days of grace being allowed," etc. (Laws of 1857, p. 829, § 2.) Observe; the bills must not only be payable on a "specified day," or so many "days after date or sight," but they must, "on their face," be so payable.

This language is plain and peculiarly specific. It was obviously designed to be so. Clearly, it intended to abolish grace as to some bills, and not as to others. We must look at its language to learn precisely upon what bills grace was intended to be abolished.



It does not, in terms, include bills payable in months or years after date; but it is said that such bills, by calculation, can be converted from months or years into days, and thus they are included. But this mode abolishes the words, their face," so payable. These words, "on their face," are thus rendered superfluous, without meaning. This violates a primary rule of construction. A bill, payable in two years from its date, is not payable, " on its face," in so many days from its date.

Thus, it follows, from the language of the act, that bills, payable "on their face" in so many months or years from date, are not payable, " on their face," in so many days from date. The language of the act is particular and exclusive. What right had a court to make it general and inclusive? I think the purpose of the act in harmony with its language.

It was intended, I think, to abolish grace upon short-time bills drawn upon banks or bankers. Thus the abolition is

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