Donegan & Tabor v. Wood

49 Ala. 242

• Court: Supreme Court of Alabama
• Decided: January 15, 1873
• Status: Published

Opinion

PETERS, J.

— [After stating the facts as above.] The most important question in this cause is that which arises on the rejection of the certificate of protest by the court below. This will be first considered. If there was no evidence of protest and notice to the defendant on the trial in the Circuit Court, there will be no necessity of going beyond this; because, whatever errors may have been committed, the verdict of the jury was correct, and the judgment of the court must follow it.

This bill of exchange, having been drawn in this State, on parties in the State of Louisiana, to be paid there, is a foreign bill of exchange. Rev. Code, § 1857. As such, it is governed by “the commercial law” applicable to such contracts. This commercial law is known to the court as a part of the common law. It is referred to by our statutes as a thing ascertained and defined. Rev. Code, §§ 1089, 1833, 1834. And this bill, being made payable in Louisiana, must be governed by the law of that State, as to the manner of making the demand and protest, whatever that may be. For the law merchant, which is a part of the common law, cannot override the local laws and commercial usages of any state which sees fit to alter it. 2 Parsons' on Notes and Bills, p. 320, and cases there cited, and Edw. on Bills, p. 46. And if there is no proof to the contrary, the courts of this State will treat the law merchant of Louisiana as the same as our own. Leavenworth v. Brockway, 2 Hill, N. Y. R. 201. Such law of the foreign state, if different from our own, must be proved as any other fact, according to the modes allowed by law. Mostyn v. Fabrigas, Cowp. R. 174; also, Thrasher v. Everhart, 3 Gill & John. 234, 242; Story’s Confl. L. § 638. The court cannot notice the local law judicially without such proof. Drake & Wife v. Glover, 30 Ala. 382.

2. In this case there was no evidence offered that the law of Louisiana governing the protest of bills of exchange was different from that of this State, or “the commercial law” referred to in the Revised Code, above cited. Then, let us apply this law as it governs such contracts in this State. Our law, which makes the certificate of demand, notice, and protest evidence, is in these words: “ The certificate of a notary public, under his hand and seal of office, or of any authorized person, under his hand and seal, of the presentment for acceptance, or demand of payment, or protest for non-acceptance, or non-payment of any instrument governed by the commercial law, or of service of notice of such presentment, demand, or protest, and the mode of giving the same, and the reputed place of residence of the party to whom the same was given, and the post-office nearest thereto, is evidence of the facts contained in such certificate.” Rev. Code, § 1089. Here, the alleged notarial certificate shows that the demand was not made by the notary himself, but “by his deputy, P. Bienvenue.” The demand of payment of a foreign bill must be made by the notary public himself. Kyd on Bills, ch. 7, pp. 136, 137; 3 Kent, p. 9; Onondaga County Bank v. Bates, 3 Hill, 59; Chitty on Bills, pp. 217, 493, 8th ed. This is a requirement of the commercial law, which it is to be presumed prevails in Louisiana, unless the usage there is shown to be different, which has not been done. The- certificate in this case does not show what the notary has done himself, but what another person has done for him. This may be true, or it may not. It is mere hearsay. It is not the officer who certifies what he has done himself and what he can record as a fact, but only what some one else has done for him. No doubt, the laws of Louisiana can authorize the notaries in that State to perform the duties of their office by deputy; but this is not to to be presumed until it is shown, which has not been done. Then, by the law as known to the court the certificate was, for this reason, insufficient.

3. But was Walter Hicks Peters, the assumed notary in this case, an officer of any government known to this court? A notary public is the officer of some known government. Very great credit is given to his acts as such, because he is an officer of some known government, entitled to recognition in the commercial world. See Masson v. Lake, 4 How. 262, 275. His certificate shows that he did not claim to be an officer of the government of the State of Louisiana as one of the “ United States of America,” but only an officer of Louisiana as one of the “ Confederate States of America,” that is, an agent of the insurrectionary organization in that State which ‘assumed this name during the late Rebellion. This was a government which has not been recognized, or accredited, by any lawful authority. It was a mere usurpation, sustained, while it lasted, alone by military force. The officer of such a government cannot give himself credit in our courts by his seal; and without this, his certificate is not competent under the statute above quoted. It may be admitted that the ordinance of secession did not take the loyal State of Louisiana out of the Union, nor destroy it; but it did furnish occasion to overturn its legal government, and establish an illegal and unconstitutional government in its stead. This occurred in the latter part of January, 1861; and this insurrectionary government was in existence in that State, making war upon the national authority, at the time this protest purports to have been made. The mere fact that it was the regnant authority in the State of Louisiana at that time does not give validity or legality to its acts or its officers. The mere temporary triumph of rebellion does not give legality to the organization under which it is conducted. It is well known that what was called “ the Confederate governments” in the speeding States were as much instruments of the Rebellion as the insurgent armies in the field. They were essential parts of the Rebellion itself, and were organized to give it aid and comfort. “ The Confederate Government of America,” so called, was of a like character, and was equally regnant, during the period of its existence, with those in the states engaged in the Rebellion.

In speaking of this “Confederate Government of America,” Justice Swayne uses this language: “ The Rebellion was simply an armed resistance to the rightful authority of the sovereign. Such was its character in its rise, progress, and downfall. The acts of the Confederate Congress creating the tribunal in question (the Confederate Court at Huntsville) was void. It was as if it were not. The court was a nullity, and could exercise no rightful jurisdiction. The forms of law with which it clothed its proceedings gave no protection to those who, assuming to be its officers, were the instruments by which it acted.” Hickman v. Jones, 9 Wall. 197, 200, 201. Then a government, to give it validity in the American Union, must have something more than mere insurgent force and regnant power to rest upon. It must also have constitutional authority, or some recognition as a government by the rightful political power, before the courts can give force to its acts or its officers. This seems to be the foundation of the judgment in the case of Texas v. White, 7 Wall. 700. Applying these principles to the State of Louisiana, it is well known that the legal government in that State was overthrown, at least as early as the 26th day of January, 1861, and that a new insurrectionary government was erected in its stead. And as early as the 4th day of February in the same year, this new government in Louisiana joined in organizing the rebel government of the so-called “ Confederate States of America.” And it continued in force as the regnant power in the State of Louisiana, and in the city and parish of New Orleans, from its institution up to the capture of that city by the federal forces, on the 25th day of April, 1862. The officers of such a government are not entitled to recognition in our courts, without some act of the legal power tending to such recognition. No such legalization was ' shown or attempted in this case. Without this, the notarial certificate was insufficient. Todd v. Neal's Administrator, at the present term, and cases there cited.

But it is not necessary to rely on a notary for the protest of a note or bill of exchange. If there is no legal notary, then it is sufficient if the protest be made out and drawn up by a respectable inhabitant of the place at which the instrument is payable, in the presence of two witnesses. But such a protest should pursue the form required by the laws or usages of the place where it is made. Story on Bills of Exchange, § 276, note 2. The certificate of such a person might be verified as his act under his hand and seal, and this would be sufficient without any notarial seal. Rev. Code, § 1089. Hence, a notary is not necessary, though convenient, for the purposes of commerce.

4. But the commercial law not only requires that a foreign bill of exchange shall be duly protested by a legal notary, or other authorized person, but also that notice of this protest shall be sent, with proper diligence, to the party or parties intended to be held bound, who are entitled to notice, or who have not received notice. If this is not done, such parties are discharged. Musson v. Lake, 4 How. 262, and authorities there cited. When the parties intended to be held liable on the bill or note are distant from the place of protest, the notice should be sent with due diligence ; that is, with all reasonable dispatch. And ifi case there is a regular mail by which it may bé sent, our statute makes this method of sending it sufficient. Our Revised Code directs, that “ in all cases, where notice of non-acceptance of a bill of exchange, or non-payment of a bill of exchange, promissory note, or other negotiable instrument is given by sending the same by mail, it is sufficient, if such notice is directed to the place where the person sought to be charged by such notice resided at the time of the drawing, making, or indorsing such bill, note, or negotiable instrument; or to the post-office nearest his residence at the time, unless at the time of affixing his signature to such bill, note, or instrument, he specifies thereon the post-office to which he requires the notice to be addressed.” Rev. Code, § 1850. This statute cannot be presumed to refer to any other “ mails ”. than such as were regularly established by law. As these mails are carried by persons duly qualified, and acting in performance of a duty imposed by law, the presumption is that these persons properly and regularly discharge this duty. By reason of this presumption, it is primé facie evidence that a notice sent in this way has reached .the person to whom it is addressed. And this is sufficient diligence, whether the person intended receives the notice or not. Knott v. Venable, 42 Ala. 186. But this presumption ends when the'mode of conveyance is irregular and illegal, and the mail may not be carried at all, and when it is known that the regular mail has been indefinitely suspended. See 1 Parsons on Notes and Bills, pp. 480, 481, 482, 483, 484; also Story on Bills, §§ 287, 288, 300 et seq. It is known to the court, as a part of the history of the nation, that the regular mails “ guaranteed by law ” were suspended between the city of New Orleans, in the State of Louisiana, and the town of Florence, in this State, long before the bill in this case fell due, and that they were not renewed until long after the 1st day of February, 1862, the time that the notarial certificate declares the notice in this case was “ put into the post-office ” at New Orleans. See Tyson v. Oliver et al. 43 Ala. 455, 458. The government of the United States then had no postal agents, or post-offices, used by it for the transportation of the mails in the city of New Orleans, and no mail service proceeding from that city to Florence. If there was any other method of conveyance for such notices, to supply the place of the regular mails, this should have been shown by proof outside of the certificate itself. It is not ground of a primé facie presumption that the notice was forwarded, that is was “ put into the post-office ” at a point from which no regular mails were carried, as “ guaranteed by law.” The proof of notice was then insufficient. Todd v. Neal’s Administrator, at the present term.

5. Another objection taken to the certificate of the supposed notary is, that it is not under a notarial seal. There seems to have been an attempt to impress some mark upon the paper, on which the certificate is written, in the place of the seal; but it is so illegible that I am not able to determine that it is a seal of any kind, or that it was intended for a seal. But, as this particular objection was not made to the instrument below, I am not confident that it was not waived. If the objection had been made in the court below, the plaintiffs might have supplied its place with a second copy of the notarial paper, more perfectly executed. I therefore waive any expression of opinion on this point. The following authorities seem to indicate that a legible seal is a necessary part of a notary’s certificate of protest and notice. Story on Bills, § 277 ; 1 Parsons on Notes & Bills, p. 634; Kirksey v. Bates, 7 Port. 529; Townsley v. Sumerall, 2 Peters, 170; Rev. Code, § 1084. Sed vide Rev. Code, § 1089, 1091.

6. Besides this, it is a settled principle of “the commercial law ” that a foreign bill of exchange is entitled to certain days of grace, after the day on which it falls due, before its payment can be demanded and the bill be protested for nonpayment. Edw. on Bills & Prom. Notes, pp. 517,518, and notes; lb. p. 47. This postpones the payment of the bill until the third day from the day it falls due. Smith’s Com. Law, pp. 244, 245, 246, Holcombe & Gholson’s ed. 1847 ; Story on Bills, §§ 329, 333, 335 et seq. In this case, the bill is dated on the 30th day of January, 1861, and is payable twelve months after date. This language excludes the day of the date, which would make the day of payment, exclusive of the days of grace, fall on the 31st day of January, 1862. Chitty on Bills, 370, 12th Amer. ed. Add to this the usual days of grace allowed on such an instrument, and the bill should not have been protested until the 3d day of February, 1862, instead of the 1st day of February, 1862. If there is any local usage, or law, in Louisiana, which changes this rule of the law merchant, it should have been shown by proof. This was not done. Then, in this case, the alleged notarial certificate shows that the demand of payment, and protest for non-payment, were made too soon. Such a protest is insufficient to bind the indorser. 1 Parsons’s Notes & Bills, p. 394 et seq.; Bank of Washington v. Triplett, 1 Peters, 25, 31, 32; Brown v. Turner, 11 Ala. 752; Savings Bank of New Haven v. Bates, 8 Conn. 505; Hollfus v. Frosch, 1 Denio, 367. The notarial paper above referred to was, in this view of it, wholly insufficient to fix the liability of the defendant Wood. It was, therefore properly rejected by the court.

7. It now remains to dispose of the demurrer to the second, third, and fourth pleas, or those pleaded by Wood alone. These pleas do not seem to have been drawn with any very great deliberation and care. The demurrer is a general demurrer to all three of the pleas. Our statute requires that “ no demurrer in pleading can be allowed but to matter of substance, which the party demurring specifies ; and no objection can be taken, or allowed, which is not distinctly stated in the demurrer.” Rev. Code, § 2656. The demurrer is in these words : “ Demurrer, and joinder in demurrer, in short, by consent, because the matters pleaded furnish no bar to the action.” Such demurrer does not come within the requisitions of the statute. It merely declares that the pleas are insufficient in law. This is not enough. It should state specifically the ground of objection, why the pleas are insufficient, so that the court could see at once what amendment, if any, could be made. Such demurrers are not to be allowed, and it is the duty of the court to overrule them. Robbins v. Mendenhall, 35 Ala. 722; Helvenstein v. Higgason, 35 Ala. 259; Burns v. Mayor, &c., of Mobile, 34 Ala. 485; Cotten v. Rutledge, 33 Ala. 110; Harrison v. Nolin, 41 Ala. 256; State, use &c. v. Gardner, 45 Ala. 46.

8. But are the pleas bad ? I think not; though the matters they contain go much beyond what is required in stating the facts. The plea is an answer to the complaint, or any 'material allegation or fact of the complaint, which, if untrue, would defeat the action. The traverse may deny all the facts alleged, or any particular material fact. 1 Chitty Pl. p. 525; Brander & Brander v. Denrick, 20 John. R. pp. 404, 406, opinion by Woodworth, J. Two of the material allegations of the complaint are : (1) “ the said bill, not being paid at maturity, ivas duly protested; (2) of which the defendant had due notice.” These facts are so denied in the pleas that a material issue can be taken thereon. This is enough. Rev. Code, § 2638. If the plaintiffs had wished,, in the court below, to strike from the defendant’s pleas other allegations of facts which were non-essential, they should have assailed them by specific objections. But, by sustaining these pleas, it is not intended to recommend them as precedents in the practice of the courts of the State. It is possible that they might have been more technically drawn up.

For the reasons above stated, the judgment of the court below is affirmed.