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Carroll v. Upton

4 N.Y. Super. Ct. 171 2 Sandf. 171 Court N.Y. Super. Ct. Decision date 1848-11-11 English

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Carroll v. Upton.[1]

Headnote

Where the notary, to whom a bill is intrusted for presentment, on protesting the bill, makes diligent inquiry to ascertain the residence of the drawer, and sends-notice to him according to the information thereby obtained, it will be sufficient to charge the drawer, although it appear that he did not reside at the place to which the notice was sent, and in fact resided in the place where the bill was protested.
Thus, where a bill was drawn at Washington, on a house in New Orleans, and the notary, (as he testified,) on its acceptance being refused in N. O., made diligent inquiry as to the drawer’s residence, learned that his reputed residence was at W., and to the best of the notary’s knowledge and belief, such was his residence, and thereupon notice was sent to the drawer at W.; it was held, that sufficient diligence had been used to charge the drawer; although the testimony on his part proved that he was, and long had been, a resident of N. O., and a counsellor at law there, and was temporarily at W. when the bill was drawn 5 and it was also proved, that the same notary had known him several years, and
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three months before, had entered of record an official act as notary, in which the drawer was described as residing in N. O.
The law of the place where a bill is drawn, governs as to the mode and place of the notice of non-acceptance and of non-payment to be given to charge the drawer; and a different usage prevailing at the place where the drawee resides or the bill is presentable, will not be admitted to control the drawer’s liability.
Sept. 29 ;
Nov. 11, 1848.
This was an action of assumpsit, brought by the payee of a bill of exchange, against the drawer. The bill was as follows:
“ $295 32. “ Washington City, March 10th, 1845.
“ At three days sight, please pay to the order of Mr. Thos. Carroll, the sum of two hundred and ninety-five dollars and thirty-two cents, and charge the same as advised to Clayton Tiffin. And oblige your ob’t. serv’t,
“ Francis H. Upton.
“ To 1. W. Arthur &f Co., Merchants, New Orleans.”
The defendant having with his plea, denied the receipt of notice of non-acceptance or of non-payment of the bill, the plaintiff, at the trial, read the deposition of Greenbury R. Stringer, the notary in New Orleans who protested the bill, and gave the notices. The witness testified, that he is a notary public, residing in New Orleans; that he knows plaintiff by name only, and has known defendant for six or seven years past. That he presented the bill in question to I. W. Arthur & Co., for acceptance, March 20,1845, and for payment on the 26th of the same month ; on each of which occasions, said I. W. Arthur & Co., did decline and refuse to accept and pay said draft, for the reason, they said, they had had no funds of the drawer. That he has been a notary ever since about March, 1843, and is so still. That on the 26th of March, 1845, as such notary, he protested the bill. That at the time of such protest, the defendant resided at Washington, in the District of Columbia, to the best of witness’s knowledge and belief; and that was the defendant’s reputed place of residence, and witness believes he was there at that time. That as such notary, he did send, by mailing at New Orleans, a notice of non-acceptance of the bill, to Upton, directed to him at Washington City, in the District of
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Columbia, on the 20th of March, 1845, in time to go by the first mail after the protest for non-acceptance. (A sworn copy of the notice was annexed to the deposition.) And that at the time of that protest, he did make diligent inquiry as to where the drawer then resided, and as to where he was at that time, and as to where a letter would reach him. And that it is the custom, practice and law, of the state of Louisiana, to send notice of protest to the drawer or maker of a draft or bill at the place where the draft or bill is dated, when the drawer or maker is absent from his usual place of domicil or residence.
On his cross-examination, he testified that the notarial copy protest, and copy of the notices annexed to the commission and depositions, are all correct, and were made by witness. That in his notarial records on 25th day of December, 1844, he finds an act of procuration passed before him as a notary public, from Clayton Tiffin to Francis H. Upton, the defendant in this suit, appointing Upton the agent and attorney in fact of Tiffin, and by which Upton is declared to be thereby placed in custody, possession and control, of the plantations and slaves of Clayton Tiffin on the Mississippi River, in the state of Louisiana ; and Upton is therein described as a counsellor at law, of the city of New Orleans. (A copy of the act of procuration was annexed.) He also finds in his records, an act passed before him as notary, by the defendant to I. W. Arthur, on the 7th of May, 1845, transferring defendant’s interest in a certain mortgage; and he is therein described as a counsellor at law of New Orleans. (A copy of the transfer was annexed.)
In these notarial acts, the witness, in his capacity as notary public, described the defendant as a resident of New Orleans.
The plaintiff read the deposition of Isaac W. Arthur, one of the drawees of the bill, to prove that he was not in funds of the drawer ; and claimed to prove by it, that the drawer did not, when it was drawn, believe the bill would be accepted or paid.
The defendant read the deposition of Wheelock S. Upton, by which it appeared that the defendant went from New Orleans to Washington, to attend the supreme court of the United States to argue a cause of Clayton Tiffin’s, and that the bill in question was drawn for the fees of the plaintiff as clerk of that
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court, in Tiffin’s suit. And the witness stated, that the defendant was authorized to draw on Arthur & Co., for the funds requisite to defray the expenses of that suit.
Both of these witnesses testified, that the defendant was a resident of New Orleans, at the date and protesting of the bill, for some years prior, and for a considerable period afterwards ; where he was a practising counsellor at law.
The judge at the trial, reserving the points of law, submitted to the jury the question as to the good faith with which the bill was drawn, upon which the jury found against the defendant. A verdict for the plaintiff was taken, subject to the opinion of the court.
W. Rutherford, for the plaintiff.
E. W. Stoughton, for the defendant.

The defendant as the drawer of this bill, was entitled to notice of its non-acceptance, unless some cause existed which made it unnecessary for the holder to give him such notice. The plaintiff claimed, that the drawer had no reason to expect that the bill would be accepted or paid, and therefore he was not entitled to notice. This question was submitted to the jury on the testimony ; and it is contended by the defendant, that there was not sufficient testimony against him to warrant the judge in leaving it to the jury.

We have considered the point, and having regard to the circumstance that the burthen of proof was upon the plaintiff, we are satisfied that the evidence against his position was altogether too strong to warrant a finding in his favor. The verdict on the question is so clearly against evidence, that we must lay it aside in disposing of the case.

Independent of this ground, upon which the plaintiff sought to excuse the omission to give notice, he claims to recover on the sufficiency of the notice which was actually given. This notice was sufficient in form, and 'sent at the proper time; but it was sent to Washington City, and the defendant’s residence was in New Orleans.

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We do not think the usage relied upon, can aid the plaintiff. The bill was drawn at Washington, as it disclosed on its face. Hence, the law of that place governs as to the mode and place of the notice to be given to the drawer. (Story on Bills, § 391, and the previous sections there referred to.)

It is said, however, that the notary used due diligence to discover the defendant’s residence, and he sent the notice to the latter according to the best of his knowledge. The notary testifies, that at the time of the protest, he made diligent inquiry as to where the drawer then resided, and to the best of his knowledge and belief, the defendant then resided at Washington, and was there at the time ; and that, the notary says, was his reputed place of residence. On the other hand, he says he has known the defendant six or seven years, and in December before this occurrence, entered a notarial act describing him as residing in New Orleans. The subsequent notarial act in May, has no bearing upon the question of his diligence in March. The defendant, for some years had been a counsellor at law in New Orleans, but had been absent over two months at Washington on professional business.

The point is undoubtedly, whether the notary made diligent inquiry; because if he did, his miscarriage is not to deprive the holder of the bill of his claim against the drawer. We do not consider the notarial act in December, 1845, as of much weight in the case. The frequency of those official duties in a large city where the laws are of French origin, must in general, preclude the recollection of individual instances. Our officers who certify the acknowledgment of conveyances, necessarily read the residence of the grantor in ascertaining the identity to which they certify. Yet it would be contrary to reason and experience, to presume that after the lapse of two months, they would recollect the description of such residence, in any given instance.

The fact of the defendant’s residence in New Orleans, and his professional standing, are met by his actual absence at the time, and by the notary’s inquiry and its results. It is not proved that the defendant’s name was in the directory, or that he had an office or place of business, or any other fact, which

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is inconsistent with the testimony of the notary, as to his knowledge and belief respecting the defendant’s residence, after diligent inquiry.

After a full consideration of the subject, we have no doubt that the proof shows reasonable diligence in the notary, to make the notice effectual.

The established principle is, that if the notary inquire of persons likely to know the residence, and having no interest to state it erroneously, and acts on the information thus acquired; it suffices, although it be wrong. A reference to a few of the decisions in this state, will illustrate the law as now established.

In Chapman v. Lipscomb, (1 Johns. R. 294,) a bill was drawn and dated in New York, on a firm residing there, by the defendants, residing in Petersburgh, Virginia. On payment being refused, the clerk of the notary made diligent inquiry after the defendants, at the banks in New York and elsewhere, and the information was, that they resided at Norfolk, and he sent notices addressed to them at that place. It was held, that due diligence had been used, and that the notice was sufficient.

In Reid v. Payne, ( 16 Johns. 218 ,) the notary, after demanding payment of a note, on inquiry as to the residence of the indorser, was informed that he lived in Greenbush, and notice was sent to him at that place. In fact, he lived in an adjoining town, five miles distant from the post-office in G. It was held, that sufficient diligence was proved.

In the Bank of Utica v. Davidson, ( 5 Wend. 587 ,) the note protested was dated at South Bainbridge. When it was' presented for discount, by the agent of the maker, he informed a clerk in the bank that the indorser resided in Bainbridge, of which the clerk made a memorandum. The notice of protest was sent by mail, directed to the indorser at Bainbridge. The indorser resided in Masonville, twelve or fourteen miles distant. He had resided in Bainbridge until a short time before the note was made. The court held, that due diligence was shown, and that the notice was sufficient.

The Bank of Utica v. Bender, ( 21 Wend. 643 ,) was like the case.last cited, except that the information was given by the

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drawer of the bill for whose benefit it was discounted, and the indorser had never resided at the place to which notice was sent. The notice was adjudged to be sufficient, and the decision was affirmed in June, 1841, by the court for the correction of errors.

In Ransom v. Mack, ( 2 Hill, 587 ,) the notary being ignorant of the residence of the defendant, the first indorser, applied for information to the second indorser, and was told to send the notice for the former to North Adams. The defendant did not reside at that place, or in the town, but received his letters at another post-office in the town of Adams. The court held, that the notary was well warranted in acting on the information thus obtained, and that there was due diligence.

Many other cases are referred to in Story on Bills, § 351, note 4, and the law appears to be uniform in almost every state in the Union. The cases of Preston v. Daysson, (7 Louis. R. 7, by Curry,) and Vigers v. Carlon, (14 ibid. 89,) show that the rule prevails in Louisiana. On the authority of the latter, which in its circumstances is quite similar to the one before us, the diligence proved here would.be held sufficient in that state. The rule of law thus established is founded in good sense, and a due regard to the rights of all parties, and applied to the testimony before us, entitles the plaintiff to recover.

Judgment for the plaintiff.[1]

(a) (a) Affirmed in the Court of Appeals, April 17th, 1850.

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