Tiernan v. Commercial Bank

8 Miss. 648

• Court: Mississippi Supreme Court
• Decided: January 15, 1843
• Status: Published

Opinion

Mr. Justice Clanton

delivered the opinion of the court.

In our view of this case, the only question necessary to be considered is, whether a bank which receives a bill for collection, properly discharges its duty, if the bill is not paid, by placing it in the hands of a notary, to protest and give the requisite notices. In other words, whether if the notary fails to give the proper notices, the bank is liable for such failure.

In the performance of this duty of collection, as well as of all other acts, a bank of necessity depends upon agents. It has no capacity to act of itself, and can perform none of its acts but through the instrumentality of agents. In undertaking to collect for others, a bank becomes an agent, and is understood to contract for reasonable skill and ordinary diligence. By reasonable skill we are to understand such as is, and no more than is, 'ordinarily possessed and exercised by persons of common capacity, engaged in the. same business or employment; by ordinary diligence that which persons of common prudence are accustomed to use about their own business and affairs. Story on Agency, 172. In many cases, it becomes necessary, and is usual for the agent to employ a sub-agent to transact the business. A bank cannot do it in any other way, for its own officers are but its agents. In these cases the agent will not ordinarily be responsible for the negligence or misconduct of the sub-agent, if he has used reasonable diligence in his choice as to the skill and ability of the sub-agent. Story on Agency, 190.

The application of these principles will be decisive of this case. The bank selected as its sub-agent a notary public, an officer created for the public convenience, and whose most familiar and important duty it is, to protest dishonored paper, and to give notice to all the parties interested. It is in proof that the bank pursued thé same course precisely with its own paper, which it took in reference to this bill. An agent is rarely if ever required to exert greater diligence as to his agency, than he bestows on his own private affairs. Story on Agency, 175.

In this state a notary is authorized to give notice, as well as to make protest, and no agent could have been selected by the bank with more propriety for the performance of this duty, than one whose profession and office were' calculated peculiarly to fit him for its discharge. They are almost universally resorted to for the purpose. We cannot perceive, therefore, that the bank was wanting either in the degree of skill or diligence, which is required under such circumstances, to exempt an agent from liability.

We are fortified in this conclusion by the case of Bellemire v. Bank of United States, 1 Miles, 173, affirmed upon appeal. 4 Wharton, 105. It is held in that case that a “bank which receives a note for collection, and when it is overdue places it in the hands of a notary in the usual course, is not liable for the neglect of the notary to give notice.” Precisely the same principle is established in the case of Hyde and Goodrich v. Planters’ Bank of Mississippi, 17 Louisiana Rep. 560. This case is based in part upon the same statute of this state, which is applicable to the present cause, and. which gives authority to the notary to notify the parties. See also Bank of Utica v. Smedes, 20 Johns.

The judgment will be affirmed.