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FENWICK fuch proteft for non-acceptance, or non-payment, in Oc v. tober 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 support 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 case, 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, because, Hanson 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 whose ufe this fuit is brought. The court, and not the jury, are to decide what is reasonable notice.
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 diftrict, after the transfer of the jurisdiction.
ift. That Hanson was not a notary public, and there fore the protest void.
A proteft 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 perfon 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 prescribed, "and "fhall also fubfcribe 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 section 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 pofsess, 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 proteft is not better than the proteft of any other perfon. If
FENWICK Hanfon 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 evidence to prove that he had not taken the neceffary oaths.
2d. The proteft for non-payment was made a day too late. The bill was prefented for acceptance on the 30th of March. The last day of grace was the 1st of June. The proteft was on the 2d of June.
The caftom as to the days of grace and the mode of computation of time, is ftated in Kyd, 9, (6.)
The bill must be prefented for payment within the days of grace and protested 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 protested 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 fubject to the laws of the place where drawn and indorsed, 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 must 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.
As to the proteft being for want of funds in the hands FENWICK of the drawees, it goes only to discharge the holder from his obligation to give notice to the drawer, but does not fuperfede the neceffity of notice to the indorfer. Kyd, 129, 131, (82, 83.) There is reason for this diftinction. A drawer may have a good reason for drawing, although he has no effects in the hands of the drawee, but yet no injury can refult to him by want of notice. But the indorfer may know that the drawer has been in the habit of drawing; but may not know the exact state of the funds upon which he drew.* The endorfer endorses on the credit of the drawer; and notice is neceffary to enable him to take measures to fecure himself from the drawer.
As to the time of notice-the non-acceptance was on the 30th of March, 1798, and on that day the holder's obligation to give notice, accrued, but he did not give it until January or February, 1801. The act of congrefs did not ftop the intercourfe between this country and France, until 1ft July, 1798. There is no evidence that any attempt was made during this time to fend notice. The bill, in feven months, found its way from France to Georgetown, and what prevented its getting back again in feven months more? The evidence ftated in the bill of exceptions fhews that there was always a circuitous route by which letters and papers might have got to France. There is alfo evidence that the drawer was able to pay for fome time after the drawing the bill, and that he afterwards left France. Notice must be given by the indorfee himself, Kyd, 126, (79, 80.) The only notice which was given in this cafe, was by Judah Hays, who is not a party on the bill.
The court, and not the jury, ought to have decided the question of reasonable notice, or due diligence. It is a queftion of law. Kyd 126, 127, (79, 80.) Notice must be given by the firft poft. The courts in Maryland have always fo decided. If the court have not decided the queftion of due diligence they have erred. They have alfo erred in the opinion which they did give. They admit that reasonable notice is neceffary to enable the plaintiffs to recover upon the bill on the first count, but that, in cafe the defendant below knew that the drawer had no
See Evans on bills, 62 and 67, Amer. edition.
FENWICK funds in the hands of the drawees, it is not neceffary to prove fuch notice in order to enable the plaintiffs to recover on the count for money had and received. It is not ADMINRS. known on what grounds the court below could take such a distinction. There was certainly nothing in the evidence which could support such an opinion. If the holder had been guilty of fuch negligence as to discharge the indorfer from his liability upon the bill, he was not entitled to recover upon either count. It was an objection which went to the whole merits of the cafe; and it is not like the cafe where a fecurity or inftrument may be vacated, but the debt still remain.
4th. The letters of administration granted in Maryland did not authorize the plaintiffs to administer afsets in the district of Columbia.
The laws of Maryland, which were adopted by congrefs for this diftrict, do not authorize an administration of affets under letters of adminiftration granted in another ftate. And fuch has been the uniform courfe of decifions in the courts of Maryland; because, by the testamentary laws of Maryland, the adminiftrator is to give bond, and render an account of his administration; and the affets are to be distributed in the manner prescribed by law.
Although this is the law of Maryland, and the laws of Maryland have been adopted in this diftrict by congress; yet they do not operate as laws of Maryland, but as laws. of the United States. And although the law is the fame, yet the jurifdiction is different. This diftrict, and the ftate of Maryland, are to each other as separate states.
Simms, for defendants in error.
ift. As to the objection that the notary had not taken the neceffary oaths.
It is believed that no cafe can be produced to support this exception. It would be extremely inconvenient if the acts of a commiffioned minifterial officer, fhould be confidered as invalid, because he had neglected to take an oath preferibed by law.*
*Note. See the cafe of Thurfan
Slatford in the exchequer, 1 Lut
yche, Rep 377, 8vo edition, 1618, where it was held that the town