Samuel Hildeburn v. Henry Turner

46 U.S. 69, 12 L. Ed. 54, 5 How. 69, 1847 U.S. LEXIS 296

• Court: Supreme Court of the United States
• Decided: January 18, 1847
• Status: Published

Opinion

. Mr. Chief justice TANEY

delivered the opinion of the court'.

This case comes before the court upon a certificate of division from the Circuit Court for the’-Southern District of. Mississippi.

The case stated is this. The plaintiff offered in evidence a bill drawn by A. G. Bennett., at Canton, Mississippi, .'upon Hetiry F.: Bennett, payable , twelve months after date,, to die order of Henry Turner, in. New Orleans, at the Merchants’-Bank thére, for nine hundred and ninety five dollars and four cents, which was-accepted by tire drawee, and-indorsed by Turner, .die-payee, to Hildeburn, the plaintiff. There.were also subsequent indorsements, upon.the bill, .which it is not material to -notice. And in order to" show, that the bill had been .duly presented for payment and refused, .the plaintiff offered to réád the following notarial. protest, upon the back of which was; a‘copy of the. bill and acceptance, and the indorsements thereon.

United States of America, State of Louisiana : —

By- this, public- 'instrument of. protest,,be it .known that, on this fourdi'day of January,- in the year one thousand- eight'hundred and forty one,- at:the. request of thé Merchants’- Bank of -New -Orleans, holder of ,the original’, whereof a true copy is on the reverse hereof written, "Ij Jules Mossy, a notary public in;and for the city and parish of New Orleans* State of, Louisiana*, aforesaid, duly coinmisr siahed' and sworn, presented said-draftito.the proper' officer at the Merchants’ Bank, where the same is made; payable, and/demanded payment thereof. .1 was answered that the same, could not be. paid. Whereupon, I,, the said notary/, at the reqü'est aforesaid; did protest, and by these presénts. do. .publicly and. solemnly.'protest, as well against'the drawer or maker of said draft as against all. others whom it may concern, for all exchange, .reexchange,, daihages, costs, charges, and interests, suffered or to be suffered, for. want of payment of the said draft.

Thus done and protested in. the presence' of George Lanaux.and Jas.. E. Gilly, witnesses.

In testimony whereof, I grant these presents, .under my signature, , ,■ and the impress' of my seal of office,- at- the city of New' Or-. *- ’ S--* leans,- on the 'day and year first above written.

(Signed,) Jules Mossy, Notary Public. .

The defendant objected to the -reading of this protest,-upon the. ground that it did. not- contain a sufficient statement of the presént-menit of:the, bill for payment, And- upon .this, question the judge*, of the 'Circuit -Court ¡were divided in opinion; aüd-thereupon- ordered' it tó be certifiedto this court. ■

This, protest is not altogether in, the-language usually employed.in' mstruments of that des'",iption, but we. ffink.it contains enough to show that the presentment and. demand were duly made..' .Undoubtedly, the principles of justice,. and the safety'óf thri Commercial community, require that such: instruments - should be carefully , examined, arid should not be. admitted.in.evidence unless they show plainly that every thing was done which the law requires’to charge the indorser. .But in tills case, it appears by- the protest, that.-the. Merchants’ Bank, at which it was.payahle, was. the holder of the Lilij ‘ and that the notary presented it for payment at -the bank, and‘demanded payment thereof, and was ans wered that it could -not be paid.. According-to the current of .authorities, nothingmor’e need'he'stated in the protest of a bill, of this' kind; -payable at a bank, -arid' of which the .Bank..is the'holder., and it is not;-necessary to'.give tbe-riame of the person or officer of the-, bank to. whom it was. presented, or by whom he was answered.:. Néither does the statement in this case, .that it was presented to the proper officer-of. the bank, give any-additional validity to- this protest, .■ For-when the; law requires the bill . to be presented to any particular' person or- officer of abank, the protest mu«t show that it-'was- presented accordingly,.and it would riot be sufficient, to say that.he presented it „to the proper person or proper officer. In this-'case,-however,'the presentment'arid'dé-. ..rnarid;-’at-the place’, where .it--was.-'made payable-is .all that'- ' was necessary, and as this appears .to have been done, the protest ought to.have been received in evidence* and.we shall cause it to be certified accordingly .to. the .Circuit Court.

Order.

This cause came on to. be heard on the transcript of the record from the Circuit Court of the United States for the Southern district of Mississippi,- and on the point ■ and question on which the judges of the said. ■ Circuit Court were opposed -in ópinion, and which were certified to this courf f°r its opinion, agreeably to the act of Congress, in such case made and provided, and was argued by counsel. On consideration whereof, it is. the opinion of this court that.the. protest offered in this case ought to have been received as evidence; wherefore,, it is now,here ordered and.adjudged that it be so certified to the said Circuit Court.