Commercial Bank of Kentucky v. . Varnum

49 N.Y. 269, 1872 N.Y. LEXIS 167

• Court: New York Court of Appeals
• Decided: April 30, 1872
• Status: Published

Opinion

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 Hew York. This has long been settled by authority. (Dickens v. Beal, 10 Peters, 572; Bk. of U. S. v. Daniel, 12 id., 32; Phœnix 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; Phœnix 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 1 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 Hew 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

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 certificates 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 v. 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.) Heither 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.

Ohitty on Bills, in his last edition (10 Eng. ed., 355, note 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 Hr. 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 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 yea/rs after date; but it is said that such bills, by calculation, can be converted from months or yea/rs into days, and thus they are included. But this mode abolishes the words, “ on 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 specifically confined to bills drawn on “ their face ” in days or on a specified day, which are usually short bills. Where the bill says pay on such a day or one day after sight, it did not mean three days thereafter. But the holder should get his money upon such short bills at the day specified.

The construction claimed by the plaintiff would abolish grace upon all time bills on banks or bankers, which was never intended, or it would have been easily expressed.

It is also a rule that statutes, in derogation of the common law, are to be strictly construed. (Bussing v. Bushnell, 6 Hill, 382; Rue v. Alter, 5 Denio, 119.) Though I place but little emphasis upon the rule for this construction. The case of Lefthy v. Mills (4 Tr. R., 170) throws light upon this question. The act there provided for a protest of bills, etc., payable in days “ after date; ” but the bill drawn was payable “ fourteen days after sight,” and the court held the statute did not “ attach ” to such a bill.

In my judgment, the statute of 1857 does not attach to this bill. It follows that it was not due until the 7th of January. It was therefore delivered for protest upon the wrong day. In such case I think the bank committed the error in delivering the bill on the wrong day for protest, and it is liable therefor to the plaintiff. (Am. Ex. Co. v. Haire, 21 Ind., 4.) The notary was directed by the bank to protest the bill. It virtually decided that there was no grace thereon. The notary is not presumed to be a lawyer who is to revise or reverse the decision of his employer as to the character of the bill, and whether it is entitled to grace or not.

The bills and notes (fifty-two in all) delivered on this day to the defendant as notary, were delivered for protest, not for advice from him as a lawyer. Doubtless the action of the bank misled him.

' If the bill was not entitled to grace, it was no doubt protested at the right time, as it is held that such bills are due upon the day following, not preceding a public holiday. (Salter v. Burt, 29 Wend., 205 ; Avery v. Stewart, 2 Conn., 69.)

There are other questions, but as these will dispose of the case it is not important to discuss them.

Judgment should be reversed, new trial granted, costs to abide the event.

Allen, Eolger and Rapallo, JJ., concur. Church, Oh. J., and Grover, J., concur upon first ground.

Judgment reversed.