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Kirtland v. Wanzer

9 N.Y. Super. Ct. 278 2 Duer 278 Court N.Y. Super. Ct. Decision date 1853-06-25 English

Contents

Majority

p. 278
Kirtland v. Wanzer and others.

Headnote

The certificate of a notary at New Orleans relative to the demand of payment and notice of dishonor of a promissory note payable in that city, although legal proof of the facts by a statute of Louisiana, cannot be read in evidence in the courts of this state.
Although in many cases a foreign law must be followed, as a rule of final decision, there are none in which it can be permitted to set aside our own rules of evidence.
It is only in relation to foreign bills of exchange that the protest of a foreign
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notary can be read in evidence, and a promissory note is not converted into a bill of exchange by being made payable in a foreign place.
(Before Duer, Paine, and Emmet, J. J.)
May 17;
June 25, 1853.
The provisions of our own statute upon this subject apply only to protests made within this state by our own notaries.
Verdict set aside. Hew trial ordered.
This was an action by the plaintiff as endorsee against the defendants as first and second endorsers of two promissory notes made by McConnell & Brothers, and payable 12 months after date to the order of Wanzer, Minor & Co., at the office of Rich. McConnell, Esq., in New Orleans.
.The defendants, in their answer, denied that the notes had been duly presented for payment or duly protested, and also set up new matter as a defence which it is unnecessary to notice, as it was abandoned on the trial.
This cause came on to be tried, in its order, on the twenty-seventh day of January, one thousand eight hundred and fifty-three, before his Honor Justice Campbell, and a jury duly empanneled; and the plaintiff, to maintain the issue on his part, read in evidence from the Statutes of Louisiana, vol. 1st, page 93, a Statute of Louisiana, entitled an Act concerning Protests of Bills of Exchange and Promissory Notes, and Notices to be given to Drawers and Endorsers, in the following words:
“ Be it enacted by the Senate and House of Representatives of the State of Louisiana, in General Assembly convened: That the notaries and parish judges shall keep a separate book, in which they shall transcribe and record, by order of date, all the protests by them made, with mention of the notices which they shall have given of the same to the drawers or endorsers thereof, together with the names of the said drawers or endorsers, the date of the said notices, and the manner in which they were served or forwarded to the said drawers or endorsers; which declaration, duly recorded under the signature of the said notary public or parish, judge, and two witnesses, shall be considered and received, in all courts of this State, as a legal proof of the said notices. All notaries, or persons acting as such, are authorized, in their protests of bills of exchange, promissory notes, or orders for the payment of money, to make
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mention of the demand made upon the drawer, acceptor, or person on whom such order or hill of exchange is drawn or given, and of the manner and circumstances of such demand, and by certificate added to such protest, to state the manner in which any notices of protest to drawers, endorsers, or other persons interested, were served or forwarded; and whenever they shall have so done, a certified copy of such protest and certificate shall be evidence of all matters therein stated.
“Whenever such drawer, acceptor,' endorser or others, shall not reside in the town or city where protest shall be made, then, and in such case, it shall be the duty of such notaries, or others acting as such, to put into the nearest post-office where a protest is made, a notice of such protest to such drawer, acceptor, endorser or others, addressed to them at their domicil, or usual place of residence.” Plaintiff’s counsel further read in evidence from volume 1st, page 61, of “Reports of Oases argued and determined in the Supreme Court of Louisiana,” by Merritt M. Robinson.
The plaintiff’s counsel then read in evidence the notes, and two certificates of protests of the said notes.
Which evidence was objected to, as inadmissible, on the ground that they purported to be certificates of a foreign notary, and were without authentication, and insufficient as proof of either presentment, protest, or notice of protest of said notes.
The Court overruled the objections and admitted the, evidence as follows:—
“$577 iT¡, “ New York, April 5, 1851.
“ Twelve months after date, we promise to pay to the order of Wanzer, Minor & Co., five hundred and seventy-seven dollars, value received, payable at the office of Richd. McConnell, New Orleans, La.
“ McConnell & Bro.,
“ Memphis, Term.
endorsed :
“ Pay Brown, Johnston & Co., or order.
“ Wanzer, Minor & Co., New York.
“ Cromwell, Haight & Co., New York.
“ Brown, Johnston & Co.”'
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“ United States of America, State of Louisiana:
“ By this public instrument of protest be it known, that on this eighth day of April, in the year one thousand eight hundred and fifty-two, at the request of Messrs. Brown, Johnston <& Co., holders of the original nóte whereof a true copy is on the reverse hereof written, I, John Claiborne, a notary public in and for the city and parish of New Orleans, State of Louisiana aforesaid, duly commissioned and sworn, after inquiry of several persons in this city, for the office of Richard McConnell, learned that Thomas H. Jackson, of this city, was his agent here, and upon repairing to his store to demand payment of said note, I was by him informed that he knew that Mr. McConnell was now in the State of Mississippi, and had no office in this city, and that although he had occasionally remitted to said Jackson funds for the payment of debts, he had not remitted any for the payment of said note.
“ Whereupon I, the said Rotary, at the request aforesaid, did protest, and by these presents do publicly and solemnly protest as well against the drawer or maker of the said note as against all others whom it doth or may concern, for all exchange, re-exchange, damages, costs, charges and interest, suffered or to be suffered for want of payment of the said note.
“ Thus done and protested in the presence of Edmond Elorian Mains and James Claiborne, witnesses. Original signed, E. Elorian Mains, James Claiborne, John Claiborne, Rot. Pub.
“ In testimony whereof I grant these presents under my signature and the impress of my seal of office, at the city of New Orleans, on the day and year first above written.
[l. s.] “John Glaibobne,
“ Nota/ry Public.”
“ New Yobk, April 5, 1851.
“ $sn Tvv
“ Twelve months after date we promise to pay to the order of Wanzer, Minor & Co., five hundred and seventy-seven /¿l dollars, value received. Payable at the office of Richard McConnell, New Orleans, La.
“ McConnell & Bbo.
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ENDOBSED:
“Pay Brown, Johnston & Co., or order.
“ Wanzeb, Minob & Co., New Yobk.
“ Cbomwell, Haight & Co., New Yobk.
“Bbown, Johnston & Co.”
“ I, the undersigned Notary, do hereby certify that the parties to the note, whereof a true copy is embodied in the accompanying act of protest, have been duly notified of the protest thereof by letters to them, by me written and addressed, dated on the day of said protest, and served on them respectively this day, in the manner following, viz:
“A notice to McConnell & Bro. was directed to them at Memphis, Tennessee, and the notices to Wanzer, Minor & Co., and to Cromwell, Haight & Co., were directed to them respectively at New York, and on the day of the above protest I did deposit the same in the Post-office in this city.
“ In faith whereof I hereunto sign my name, together with Edmond Florian Malus and John Claiborne, witnesses at New Orleans, this eighth day of April, eighteen hundred and fifty-two. Original signed James Claiborne, E. Elorian Malus, John Claiborne, Notary Public.
“ State of Louisiana, City of New Orleans:
“I, John Claiborne, a Notary Public duly commissioned and sworn in and for the parish of New Orleans, State of Louisiana, do certify the foregoing to be a true copy of the original certificate of notice extant in my current notarial register.
“ Witness my hand and official seal at New Orleans, this eighteenth day of August, A. D. 1852.
[l. s.] “ John Claibobne,
“ Notary Public.”
The protest and certificate relative to the second note were also read in evidence, and were substantially of the same import.
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The judge directed the jury to find a verdict for the plaintiff for $832.22, the amount due upon the notes, subject to the opinion of the court upon a case to be heard, in the first instance, at the General Term.
A. C. Bradley, for the plaintiff,
now moved for judgment upon the verdict, and insisted that the evidence' objected to was properly received. 1. The certificates were in strict conformity to the laws of Louisiana, where the notes were payable. 2. Courts always and everywhere take judicial notice of the appointment and signature of Rotaries Public. (Shanklin v. Cooper, 8 Blackford 41; Bryden v. Taylor, 2 H. & J. 396 ; Philip v. Flint, 8 Mill Lou. R. 149, &c.; Caune v. Sagory, 4 Martin Lou. R. 81; Haliday v. McDougall; 20 Wend. 81 ; 3 Cow. & Hill, 1852.) 3. It was part of the duties of notaries public in Louisiana, to demand payment and to give notice of non-payment as well of promissory notes, as of bills of exchange.
Wm. D. Booth, for the defendants,
insisted that the verdict ought to be set aside, and argued as follows.
I. The certificates of protest were improperly admitted in evidence. They purported to be the certificates of a notary of Louisiana, and, 1. If regarded as the certificates of a foreign notary, should have been under a common law seal, to make them evidence of themselves. 2. If regarded as protests of inland bills; they’ should have been authenticated, or some proof given that the person making them was a notary.
H. If properly admitted, the certificates of protest are insufficient evidence of eithe'r the presentment, protest, or notice of protest, of the notes. The answer of the defendants denies any knowledge of either, and is under oath. 1. A notarial certificate is not evidence out of the State (Dutchess County Bank v. Ibbotson, 5 Denio, 110 ). 2. The act making notarial certificates proof of notice, applies to none other than notaries of this State (Bank of Rochester v. Gray, 2 Hill, 227 ). 3. It might be otherwise after the death of the notary; but not while the notary is living ( 5 Johns. 375 ; 20 Johns. 168 ; 5 Har. & Johns. 489). 4. A protest of an inland bill or note, is no evi
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deuce of demand or notice, by itself; it must be proved, as if no protest had been made (Cummings v. Fisher, Anth. N. P. 1; Union Bank v. Hyde, 6 Wheat. 572 ; Nichols v. Webb, 8 Wheat. 326 , 7 Barr. 433).
IH. The notes on which this action is brought, are “ inland bills,” and evidence of their alleged presentment and protest, and notice to endorsers, should have been given as such. 1. The law merchant that permits the protest of a notary made abroad, and under seal, to prove itself, is not applicable in this case (Chitty on Bills, 643; 2 Barn. & Ald. 696; 4 Camp. 129; 5 Johns. 175 ).
• IV. The certificates are themselves defective, in that they fail to show a due presentment of the notes for payment, or that the notary presented them on making demand for payment (Musson v. Lake, 4 How. U. S. R. 262).

The statute of Louisiana, by its terms, makes the certificate of the notary legal proof of the facts which it embraces, only in the courts of that State, and were its provisions not thus limited, so far from being under any obligation to obey, we should be bound to disregard them. There are many cases in which a foreign law must be followed as a rule of decision upon the rights of the parties, but none in which it can be permitted to control and supersede our own rules of evidence.

Setting aside the statute, then, we are clearly' of opinion, that the protests and certificates of the notary at New Orleans were not evidence, either at common law or under our own statute.

The law is settled, that it is only in relation to foreign bills of exchange, that the protest of a foreign notary can be admitted in evidence, and the notes now in prosecution are certainly not bills of exchange. It is true that promissory notes payable in another state or country, may, for remittance, answer the purpose of bills of exchange; but this circumstance is no more sufficient to convert them into bills of exchange than were they bonds under seal containing the same provision as to the place of payment.

As to our own statute it has no application. As we under

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stand its provisions, it is only to protests made within this State, and by our own notaries, that they can be applied.

We shall give no opinion upon the question, whether if the protests and certificates could be properly read in evidence, the facts set forth would be sufficient to charge the defendants as endorsers. The notary must now be examined as a witness, and it is upon his testimony, when so examined, that the case must ultimately turn.

The verdict is set aside, and there must be a new trial, with costs to abide the event.

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