Jeremiah Smith vs. Robert Ralston

Jeremiah Smith vs. Robert Ralston. The agency of a notary public in presenting for payment and giying notice of non payment, in case of promissory notes and inland bills of exchange, is not nc-cessary- A general verdict to a declaration containing several counts, without stating on which of said counts it is rendered, is not erroneous. This was an action brought by Ralston vs. Smith in a plea of trespass on the case on promises. The declaration contained four counts upon three several promissory notes, and a general count for goods &c. sold. Plea geni, issue — verdict for plaintiff and judgment thereon. Whereupon the defendant files his bill of exceptions, as follows : Be it remembered, that on the trial of the above cause the plaintiff introduced a certain promissory note, dated at Milwaukie, Wisconsin Territory, at which place the drawer resided, and of which the defendant was endorser and the plaintiff endorsee, to the introduction of which promissory note the defendant objected, because there was no protest for presentment and non payment introduced to the jury, nor the absence of such protest accounted for, which objections were overruled, and the court decided that the protest of a note may be proved by other evidence than a notary’s certificate of protest — that such a certificate of protest, attested by the notary, authenticated by bis seal of office, is competent testimony of itself, and obviates the necessity of other proof; but that any person may present a note for payment, and protest the same for non payment, and give notice of such protest. “Provided these facts be established by competent evidence.” To which opinion of the court the defendant by his atty. excepts, and prays that this his bill of exceptions may be signed and sealed by the court, &c. In addition to the matter set forth in the bill of exceptions the plaintiff in error also assigned for error that the jury rendered a general verdict upon the declaration; without saying upon which of the counts said verdict was rendered. Browning, for plff. in error. Rorer, for dft. in error. Browning cited 1 Johns. 294 — 5 ib. 375 — 16 ¿6.218 — 2 Star. Ev. 162,3, 4— 10 Mass R. 1 — 3 Pick. R. 415 — 4 T. R. 170 — 5 ib. 239 — Bayley on Bills, 115, 515, 516, 517. [MAJORITY — Mason, Ch. Jus.] By the Court. Mason, Ch. Jus. This was an action brought by the defendant against the plaintiff in error on three promissory notes, on which the said plaintiff was sued as endorser. The principal error complained of, however, as designated in the bill of exceptions, relates to but one of these notes. This was drawn at Milwaukie, where the drawer resided, and endorsed by Smith to Ralston. To the introduction of this note the counsel for the defendant below objected, because there was no notarial protest for non payment introduced to the jury. This objection was overruled by the court, on the ground that no protest or notarial certificate of presentment and non payment was necessary in cases of promissory notes, but that these might be presented by any person other than a notary public, and due notice of the non payment thereof would be sufficient to charge the endorser, and that these facts might be proved by ordinary witnesses. From an examination of all the authorities referred to by the counsel for the plaintiff in error which could conveniently be consulted, we find nothing to convince us of any error in this respect in the court below. On the contrary, one of those authorities, 3 Pickering, 415, is a direct sanction to the decision below. It was decided in that case that the agency of a notary public in the presentment of promissory notes, and giving notice of non payment was unnecessary. On notes and inland bills of exchange it is only necessary (in order to charge the endorser) that they should be presented for payment, and notice of non payment duly given. Chitty on Bills, 465. This is the evident dictate of reason and expediency, for otherwise, as the law has heretofore been, the endorsee of a note, however small in amount, must relinquish all claim upon the endorser, or else call in the assistance of a notary public, however distant, which could be equally well performed by himself in presence of his next neighbor. The only other error assigned is that the jury rendered a general verdict upon the declaration, without stating upon which of the several counts said verdict was rendered. As no authorities have been cited on this point, we shall only say that the want of such specification does not render the proceedings erroneous. Judgment affirmed.