Samuel Hildeburn, Plaintiff, v. Henry Turner, Defendant

Samuel Hildeburn, Plaintiff, v. Henry Turner, Defendant. When a bill of exchange is made payable at a bank, and the bank .itself is the . holder of (he bill,' it is a sufficient demand if the notary presents it at the bank ■ and demands payment... If, therefore, the protest states this and. also that the notary was answered that it could not be paid, it is sufficient^ It.is not necessary for'him to give the name of the person or officer of the bank-to whom it-Was presented, and by whom he was answered. .’This case came up ón a certificate of-divisioqin opinion.from the. Circuit Court of the United-Slates‘for. the Southern District of Mississippi. The point of difference is fully set forth in the opinion of . the court-. . It was argued, by Mr. Brent, for the plaintiff, and Mr. Bibb, for •the defendant. Mr. Brent, . for plaintiff. The singlé question is oh .the admissibility of the notarial protest; and, if-admissible for any purpose, it is competent evidence. The. .bill of exchange is drawn in Mississippi, payable in Louisiana ; and, ..in s.uch case, the protest is evidence by the laiy'merchant’. ■ 2 .Pet.ers, 593 2 Peters, 691; Waldron v. Turpin, 15 Louisiana Rep. "555 ; 5; Martin’s (N."S.) Rep. 513.. On this head, I also' refer to the statute of. Louisiana, 1827. (Bullard- and Cuny’s Digest, 13, 43)., and to 14 Louisiana. Rep. 394 ; Fráñklin v.' Verbois, 6 Louisiana Rep. 730. The. demand-is-.presumed to be made in. business hours. Fléining v. Fiilton, 6 Howard’s-Miss. Rep; 484. .1 also .réfer.to •the-decision of this' court in Mussón -v:Lake, 4.Hów.. S.. Q. R. 262,.and to Brandon.& Lofftus a. Whitehead,1 4-How.’S. G. R. 127 ; also, to Bank of the United; States;#. Came’al., 2 Peters, 549. ¡Mr. Bibb,, for’ defendant. The .objection1, taken to the Reading of the protest offered in evidence was, that the prótest.did not contain a sufficient statement of-: tile presentment of the bill for payment. The bill was . drawn by. A. G. Bennett, at Cantón, Mississippi^ on, H. F. Bennett, at • same, place, in favor óf Henry .Turner, in New-Orleans, for ‡995.04, payable .at. the Merchants’..Bank of Near Orleans, twelve months after date. Accepted-by £L F. Bennett, indorsed to Samuel Hildeburn by Henry Turner, and -to A. H, Wallace &.Co.,.by the indorsee, Hilderburn. The notary in his protest'for non-payment states, — “ At the re? quest of. the Merchants’’.Bank- of New Orleans, holder,” 4‘ I presented said draft to the proper officer, at the Merchants'? Bank, where the same is made payable, and demanded payment, thereof.I was. answered that-the same could not be paid.” ' Whereupon he protested, &c. No person is named to whom he presented the bill for payment. The notary has undertaken to judge a matter of* law, instead of certifying the name -of the person supposed to be the proper officer of the bank. .'Was. he the president, or the cashier, or a director ? Who was he' ? What was his name ? The notary presented the bill to an officer of the holder, and demanded payment of the holder’s servant or agent.. The notary- should- have exhibited the bill openly and publicly at the bank, and demanded payirient openly and publicly, so that all persons at the bank, or in hearing, might have had notice. . A.s the presentment of the bill was not to the acceptor, nor to any person in his employ, the demand of payment, at the place appointed in the body of the bill, should have been general and public, so that any person interested might have taken up the. bill. The person, the name of the person, to whom the presentment and demand of payment was. made, should have been stated. See .Chitty on Bills and Form of Protest (9 Lond. ed.), 462. [MAJORITY — . Mr. Chief justice TANEY] . 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.