FENWICK

V.

SEARS'S

a proteft as by the law of merchants is required, and was not made within the time by the law and custom of merchants required, and therefore that the plaintiffs canADMINRS. not in this cafe recover of the defendant upon the faid bill of exchange; but the court refused to give such inftruction.

4th. The fourth bill of exceptions ftated at great length the testimony of feveral witneffes, tending to thew notice of the non-payment given to the defendant in this country fome time in 1800 or 1801, and that the defendant had made fome propofitions for fettling the bill. That the drawees had no funds of the drawer in their hands. That the drawees held a deed from the drawer of certain lands in Georgia and North-Carolina, and an affignment of a large demand on the French government, and of another large demand against an individual in France, which they held in truft to pay certain debts due from the drawer, and to pay him the furplus if any. That they had permitted the drawer to go to France and attend to thefe claims and fell the lands, but that it was under'ftood between them and the drawer that he fhould bear his own expenfes, but that they did not inform the defendant of that circumftance. That at the time he went they thought favourably of the truft and wrote by the drawer to the defendant, expreffing their opinion of it, and inclosing to the defendant a power of attorney to act for them in the business and to receive any monies that might be recovered under the truft, and informing him that the drawer would attend and look after the said concerns. That at the time of presenting the bill they had not received any money under the trust, but were in advance on that account. That the bill was endorsed by the defendant to enable the drawer to raise money in France, for the purpose of supporting his neceffary expenfes whilft he was profecuting there those claims in which the drawees were interested as trustees, and that the drawer fold them for that purpose. That the defendant came to this country on business in October 1800, and returned to France in May 1802, and during his stay in this country made Georgetown his place of refidence.

That after this bill was drawn, the drawer received in France a fum of between 2000 and 3000 dollars, in the

2.

SEARS'S ADMINRS.

Beginning of the year 1798; that during the years 1798, FENWICK, 1799, and 1800, French fhips were permitted to fail directly from America to France, for the purpose of carrying Frenchmen home; this happened perhaps twice a year or oftener. That during thefe years there was a communication between America and France for letters, &c. through the medium of London and Hamburgh. That after the fpring of 1798, American veffels were very often captured by the French armed veffels on the high feas; and that at the time previous to the year 1798, American ships were embargoed in France.

The defendant then prayed the court to inftruct the jury that upon the whole evidence, as ftated, the plaintiffs, by their neglect in not giving notice to the defendant, the indorfer on the faid bill, that it was protested for non acceptance and for non-payment, fooner than they did, had released the defendant from all responsibility on the fame, and could not recover thereon; which direction was not given as prayed, the court being divided in opinion whether, in this cafe, the question of reasonable notice was a matter of law to be determined by the court, or a matter of fact to be determined by the jury. But the court were of opinion, and fo directed the jury, that if they should be of opinion from the evidence, that the defendant who indorfed the bill drawn by F. L. Taney in this fuit, kner, at the time of fuch indorfement, that the faid Taney had no effects in the hands of the drawers, on which he could draw, notice of the non-payment, or of the proteft therefor, was not neceffary to enable the plaintiffs to recover, in this action, on the count for money had and re

eeived.

The fifth bill of exceptions, after repeating the evidence at length, stated that the defendant prayed the court to inftruct the jury, that although they might be of opinion that Fenwick, the defendant, knew at the time of his indorsement that the drawer had no effects in the hands of the drawees on which he could draw, yet, to fupport an action, on the bill of exchange, against the defendant, it was neceffary for the plaintiffs to give him reasonable notice of the proteft of the bill for non-acceptance or non-payment, one or the other; and that under the cir cumftançes of this cafe, notice to the faid Fenwick of

v.

SEARS'S ADMINRS.

FENWICK fuch proteft for non-acceptance, or non-payment, in October 1800, was not reasonable notice; whereupon the court were of opinion and directed the jury that if they were fatisfied from the evidence that the defendant, at the time he endorsed the bill, knew that Taney had no effects in the hands of the drawees, upon which he could draw, ftill it was neceffary for the plaintiffs, in order to fupport their action against the defendant, upon the firft count in the declaration, to give him reasonable notice of the proteft for non-acceptance or for non-payment, one or the other; but whether under the circumstances of this cafe, reasonable notice had been given, to the said Fenwick, of the faid proteft, the court gave no opinion; being divided in opinion whether the fame was matter of law to be determined by the court, or matter of fact to be determined by the jury.

Verdict for the plaintiff, 439 dollars, and 46 cents, and judgment accordingly, to reverse which the present writ of error was brought by the defendant.

Mafon, for plaintiff in error.

Simms and C. Lee, for defendants.

Mafon, now waved the confideration of the firft bill of exceptions, and relied upon the following points.

ift. That the protefts ought not to have been admitted to be given in evidence, becaufe, Hanfon who made them, although he ftiles himself notary public, was not a notary public.

2d. That the proteft for non-payment was not a fufficient proteft to charge the indorfer, because it was not made within the days of grace, but on the day after the last day of grace.

3d. That the notice of the non-payment given to the defendant was not given in reasonable time; and did not come from an indorfee, but from Judah Hays, for whofe ufe this fuit is brought. The court, and not the jury, are to decide what is reasonable notice.

2.

4th. The letters of adminiftration granted in Maryland, FENWICK before the jurifdiction over the diftrict of Columbia vefted in the United States, do not authorize the plaintiffs to maintain an action, as administrators, within the dif trict, after the transfer of the jurifdiction.

ift. That Hanfon was not a notary public, and therefore the protest void.

A protest by a person having due authority, is the only evidence which can be received of the non-acceptance or non-payment of a foreign bill, to charge the indorfer, Kyd, 136. 142. (87. 91.)

The only person who can have fuch due authority is a notary public. Kyd. 137. (87.)

With regard to inland bills and promiffory notes, the ftatute of Anne is adopted in Maryland, and the courts of Maryland are governed by the fame rules, laws and authorities as the English courts.

By the conftitution of Maryland, §. 48, notaries public are to be appointed by the governor and council. The 55th fection declares," that any perfon appointed to any "office of profit or truft, fhall, before he enters on the ex"ecution thereof," take the oath therein prefcribed, "and "fhall also subscribe a declaration of his belief in the "Chriftian religion.".

The act of affembly of Maryland, Feb. 1777, ch. 5, prescribes an oath of office to be taken before the officer enters into the execution of his office.

The act of affembly, Nov. 1779, c. 25, §. 2, afcertains his fees, and the 8th fection prefcribes the form of another oath to be taken, before entering on the duties of his office, under a penalty of £. 150.

If a man affumes a character which he does not poffefs, and a feal to which he has no right, his acts are not obligatory. No man can conftitute himself a notary public. If not duly appointed and qualified, his protest is not better than the proteft of any other perfon. If

SEARS'S ADMINRS.

v.

FENWICK Hanson had not taken the oaths, and if he could not act until he had taken them, then the protest is not by a notary; and it was competent to the defendant to give eviADMINES. dence to prove that he had not taken the necessary oaths.

SEARS'S

2d. The proteft for non-payment was made a day too late. The bill was prefented for acceptance on the 30th of March. The laft day of grace was the ft of June. The proteft was on the 2d of June.

The custom as to the days of grace and the mode of computation of time, is stated in Kyd, 9, (6.)

The bill must be presented for payment within the days of grace and protefted on the last day of grace. Kyd, 136, 142, (87, 97.)

Although the bill be protefted for non-acceptance, yet it must be presented for payment at the time it becomes due and regularly protefted for non-payment. And although a right of action accrues upon the proteft for nonacceptance, yet the holder is held to have difcharged the drawer and indorfers, unless he prefents it for payment when due, and regularly protefts it for non-payment. Kyd, 117, 120, (76, 79, &c.) 121, 137, 138, 151, 208.

3d. The defendant had not fuch notice of the protests for non-acceptance and non-payment, as to render him liable.

The cafe of Brown v. Barry, 3 Dallas, 365, has no relation to this cafe. That was a bill drawn in America upon a perfon in Europe. This is a bill drawn in Europe on a person in America, and is therefore subject to the laws of the place where drawn and indorfed, as to the liability of the drawer and indorfers. The engagement of Fenwick, the defendant, was made in France, and his liability is to be determined by the laws there. The obligation of the drawer and indorfers is only conditional; the holder muft do certain things to entitle him to call upon them. Kyd, 117, (76.) He is bound to give regular notice of non-acceptance to all the preceding parties to whom he means to refort.