Fenwick v. Sears's Administrators

Syllabus

An administrator, having had letters of administration in Maryland before the separation of the district of Columbia from the original states, can not, after that separation, maintain an action in that part of the district ceded by Maryland, by virtue of those letters of administration; but must take out new letters within the district.

Error from the judgment of the circuit court of the district of Columbia, sitting at Washington, in an action on the case on a foreign bill of exchange, by the administrators of the indorsee against the indorser.

The case, as it appears in the pleadings and bills exceptions, was as follows:

Francis Lewis Taney, at Paris, in France, drew the following bill of exchange: “Paris, 5th August, 1797, “ Sixty days after sight of this my second of exchange, " (first and third not paid) pay to the order of Mr. Jo-

“seph Fenwick the sum of three hundred and fifty dol-“lars, for value received in account, which charge as “ advised by your most obedient servt Fras. Lew. Taney.” “To Messrs. Ben. Stoddert and John Mason, George -" town, Maryland.”

Quere, whether the acts of a notary public who certifies himself to be duly commissioned and sworn, are valid, if he be duly appointed, but not actually sworn in due form?

Whether, between contending parties, the certificate of a notary public, that he is “duly “commissioned "and sworn," can be contradicted?

Whether a protect for non-payment of a bill of exchange must be made on the last day of grace?

Whether the reasonableness of notice be matter of fact, or matter of law?

Whether, on a count for money had and received, notice of non-acceptance, and of non-payment be necessary to charge an indorser who knew, at the time of indorsement, that the drawer had no right to draw.

This bill was indorsed by Fenwick to George Sears, of Baltimore, and on the 30th of March, 1798, it was presented for acceptance, refused, and protested in the usual form for non-acceptance, by Samuel Hanson of Samuel, stiling himself notary public for the county of Montgomery in the state of Maryland, dwelling in George-town, in said county, duly commissioned and sworn.

On the 2d of June, 1798, payment of the bill was demanded of drawees by the same notary, and refused, whereupon, on the same day he protested it in the usual form for non-payment. Fenwick, the indorser, was at the time of indorsing, and had been for ten years before, a resident of France, but in the year 1800 he came to this country, and on the 4th of April, 1801, the plaintiffs below brought suit against him here upon his indorsement. The declaration had two counts, one upon the non-acceptance of the bill, the other for money had and received.

The defendant below pleaded,

1st. Non-assumpsit.

2d. That the plaintiffs “have not obtained letters of “administration on all and singular the goods and chat-“tels, rights and credits, which were of the said George, “at the time of his decease, to wit, at Washington coun-“ty aforesaid, and this he is ready to verify, wherefore “he prays judgment,” &c. to which the plaintiffs replied, “that the said George Sears, the intestate, departed this “life, in the town of Baltimore, in the county of Bal-“timore, in the state of Maryland, which was at that “time his place of residence, on the day of “in the year of our Lord. 1800, intestate; and after-“wards, to wit, on the 8th day of November, in the “year aforesaid, administration of all and singular the " goods and chattels, rights and credits of the said intes-“tate, was granted to the said John Stricker and Henry

a protest 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 cannot in this case recover of the defendant upon the said bill of exchange; but the court refused to give such instruction.

4th. The fourth bill of exceptions stated at great length the testimony of several witnesses, tending to shew notice of the non-payment given to the defendant in this country some time in 1800 or 1801, and that the defendant had made some propositions for settling 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 assignment of a large demand on the French government, and of another large demand against an individual in France, which they held in trust to pay certain debts due from the drawer, and to pay him the surplus if any. That they had permitted the drawer to go to France and attend to these claims and sell the lands, but that it was understood between them and the drawer that he should bear his own expenses, but that they did not inform the defendant of that circumstance. That at the time he went they thought favourably of the trust and wrote by the drawer to the defendant, expressing 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 trust, 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 necessary expenses whilst he was prosecuting there those claims in which the drawees were interested as trustees, and that the drawer sold 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 residence.

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

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

The defendant then prayed the court to instruct the jury that upon the whole evidence, as stated, the plaintiffs, by their neglect in not giving notice to the defendant, the indorser on the said bill, that it was protested for non-acceptance and for non-payment, sooner than they did, had released the defendant from all responsibility on the same, and could not recover thereon; which direction was not given as prayed, the court being divided in opinion whether, in this case, 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 so directed the jury, that if they should be of opinion from the evidence, that the defendant who indorsed the bill drawn by F. L. Taney in this suit, knew, at the time of such indorsement, that the said Taney had no effects in the hands of the drawers, on which he could draw, notice of the non-payment, or of the protest therefor, was not necessary to enable the plaintiffs to recover, in this action, on the count for money had and received.

The fifth bill of exceptions, after repeating the evidence at length, stated that the defendant prayed the court to instruct 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 support an action, on the bill of exchange, against the defendant, it was necessary for the plaintiffs to give him reasonable notice of the protest of the bill for non-acceptance or non-payment, one or the other; and that under the circumstances of this case, notice to the said Fenwick of

such protest 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 satisfied 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, still it was necessary for the plaintiffs, in order to support their action against the defendant, upon the first count in the declaration, to give him reasonable notice of the protest 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 said protest, the court gave no opinion; being divided in opinion whether the same 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.

Mason, now waved the consideration of the first bill of exceptions, and relied upon the following points.

1st. That the protests ought not to have been admitted to be given in evidence, because, Hanson who made them, although he stiles himself notary public, was not a notary public.

2d. That the protest for non-payment was not a sufficient protest to charge the indorser, 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 indorsee, but from Judah Hays, for whose use this suit is brought. The court, and not the jury, are to decide what is reasonable notice.

4th. The letters of administration granted in Maryland, before the jurisdiction over the district of Columbia vested in the United States, do not authorize the plaintiffs to maintain an action, as administrators, within the district, after the transfer of the jurisdiction.

1st. That Hanson 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 indorser. Kyd, 136. 142. (87. 91 .)

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

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

By the constitution of Maryland, §. 48, notaries public are to be appointed by the governor and council. The 55th section declares, “that any person appointed to any “office of profit or trust, shall, before he enters on the ex-"ecution thereof," take the oath therein prescribed, “ and “ shall also subscribe a declaration of his belief in the “Christian religion.”

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

If a man assumes a character which he does not possess, and a seal to which he has no right, his acts are not obligatory. No man can constitute himself a notary public. If not duly appointed and qualified, his protest is not better than the protest of any other person. If

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 evidence to prove that he had not taken the necessary oaths.

2d. The protest for non-payment was made a day too late. The bill was presented for acceptance on the 30th of March. The last day of grace was the 1st of June. The protest 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 protested on the last day of grace. Kyd, 136, 142, (87, 97.)

Although the bill be protested 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 protest for non-acceptance, yet the holder is held to have discharged the drawer and indorsers, unless he presents it for payment when due, and regularly protests it for non-payment. Kyd, 117, 120, (76, 79, &c.) 121, 137, 138, 151, 208.

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

The case of Brown v. Barry, 3 Dallas, 365, has no relation to this case. That was a bill drawn in America upon a person 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 indorsed, as to the liability of the drawer and indorsers. 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 indorsers 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 resort.

By the act of Assembly of 1779, c. 25, §. 8, a penalty is enacted for not taking the oath there mentioned. This does not make void the acts of the officer, if he neglects to take the oath required, but only subjects him to the penalty, for acting without taking it. From this it may be inferred that the legislature considered his acts as valid.

The court did not err in refusing the evidence offered, because it was an attempt to prove a negative. The oath might have been taken before any judge, or justice of the peace in the state of Maryland, or any alderman in the city of Annapolis. The law does not require such oath to be recorded, or deposited in any particular place. A party can never be called upon to prove that a notary public, who protests a bill of exchange, was duly qualified to make such a protest; consequently the court ought not to admit evidence that he was not, so as to throw the burden of proof upon the other party. There is no penalty prescribed for not taking the oaths required by the constitution of Maryland, and by the act of 1779, but it does not follow from that circumstance, that the acts of the officer, duly appointed and commissioned, would be void by his not having taken the oaths, because he might be indicted and punished for his contempt of the law, and his neglect of duty. Innocent people ought not to suffer by his negligence, especially as they have no means of knowing whether he had taken the oaths or not. The public commission from the proper authority is all that can be required to protect the rights of third persons.

It is true that in the passage cited from Kyd 136, (87.) it is said, that "the person whose office it is to do these "acts" (that is make protests, &c.) "is in common lan-"guage, termed a public notary," but it is also said in Evans 94, that when there is no public notary in the place, the protest may be made by any other person.

2d. As to the time of making the protest for non-payment.

The time when a protest ought to be made depends much on the custom of the place. 4 Bac. ab. Guillim's

Ed. 687. The time in England was for a long while unsettled. In Salk. 132, Hill v. Lewis, it was determined that, with respect to foreign bills, the drawee had three days of grace to pay them in, and that no demand need be made till the expiration of the three days, consequently that the protest need not be made till after the third day of grace. But in the case of Tassel v. Lewis, Ld. Ray. 743, it was held that the time of payment is the last of the three days, and that the demand ought to be made on that day. In a late case of Leftly, v. Mills, 4 Term, Rep. 173, Ld. Kenyon held that the acceptor had till the last moment of the last day of grace to pay the bill, consequently the protest could not be made till the day after. But Buller held that the acceptor was bound to pay the bill, on demand, on any part of the third day of grace, and that the bill ought to be protested on that day, and it is believed that such is now the established custom in England. Kyd, 120, 121, (79, 80.)

But the custom of merchants in the United States differs in some respects from the custom of merchants in England. Brown v. Barry, 3 Dal. 365 , 368. It is believed that, in the United States, the custom is to protest on the day after the last day of grace. Such is the custom in the banks of Alexandria and Columbia, in the case of promissory notes; and no difference is known in that respect between promissory notes and bills of exchange, There is no reason why a difference should exist, as the three days of grace are allowed in one as well as in the other.

But in this case, the bill was protested for non-acceptance and the defendant thereupon became liable to the action of the plaintiff. In an action brought upon the non-acceptance, it is not necessary to aver a demand or protest for non-payment on the day when the bill becomes due; and what it is not necessary to aver, it is not necessary to prove; Lilly's Ent. 55, Dunstar v. Pierce, which was a case on a demurrer to the declaration; demurrer overruled, and judgment affirmed in the exchequer.

But had the bill been accepted, then a protest for non-payment would have been absolutely necessary. Evans 66, Kyd. 140, Doug. 55, Milford v. Mayer. Buller N. P.

269. Bright v. Purrier. Kyd, 110, 111. 3 Wil. 16, 17.

3. Under the circumstances of the present case, the plaintiffs were not bound to give the defendant notice at all; the jury having found in substance, that at the time the defendant indorsed the bill, he knew that the drawer had no effects in the hands of the drawees; and was therefore guilty of a fraud on the plaintiff's intestate, in selling him the bill. The plaintiffs therefore had a right to recover on the count for money had and received.

Besides, the reason of the rule which dispenses with notice to the drawer, when the drawees have no effects, applies as strongly to the indorser who knows that fact, as to the drawer. Notice to such an indorser can be of no benefit, because he knew, at the time of indorsing, that the bill would not be paid, and therefore must have taken security from the drawer, or if he did not, it was his own fault. By knowing at the time of indorsing that the drawees had no funds of the drawer in their hands, he virtually had notice of the non-acceptance and non-payment. The rule, which requires notice to an indorser, is made for his protection and benefit; and ought not to be converted into the means of enabling him to practice a fraud.

The opinion of the court below, that although notice might be necessary in order to support an action on the bill upon the first count, yet it was not necessary to maintain the count for money had and received, was certainly correct, and fully warranted by the case of Bickerdike v. Bollman, 1 Term rep. 408, 409, 410. In that case Ashhurst, justice, says that notice is not necessary to the drawer when he has no effects in the hands of the drawee; " for it is a fraud in itself, and if that can be " proved, the notice may be dispensed with." Kyad 129 (82) Evans 59. Every indorser is, to his indorsee, as the drawer of a new bill. Kyd 113 (72.) 1 Salk. 133. Harry v. Perrit, 2 Shower 501. Claxton v. Swift, and in Heylin v. Adamson, 2 Burr, 674, Lord Mansfield says, " that when a bill of exchange is indorsed, by the person " to whom it was payable; as between the indorser and " indorsee, it is a new bill of exchange, and the indorser

“ stands in the place of the drawer.” If, therefore, the indorser, at the time he transfers a bill, knows that the drawer has no effects in the hands of the drawee, he is as guilty of fraud as the drawer himself; and in all cases where money is obtained from another by fraud of any kind it may be recovered back in an action for money had and received, 2 Bur. 1012 . Moses v. Macferlan. Salk, 28. Hasser v. Wallis. And in the case before cited of Bickerdike v. Bollman. 1 Term rep. 410, Buller, justice, says, “ Besides, in the present case, as the plaintiff’s counsel “ have truly argued, the question is not, whether an ac- “ tion could be maintained on the bill itself, but whether “ the want of notice extinguishes the debt. As to which “ the case is this, A. not having any effects in C.’s hands, “ draws a bill of exchange for L.100 on him, in favour “ of B. for value received. Now if C. does not accept, “ and B. does not give notice to A. there is an end of the “ bill. Then how does the case stand ? A. has L.100 of “ B.’s in his hands, without any consideration, which, “ therefore, B. may undoubtedly recover in an action for money had and received.”

The reasoning in that case applies exactly to the present. Here the defendant Fenwick, by his indorsement of the bill, acknowledges that he has received its amount. He has received of the intestate 350 dollars, without any consideration, and, therefore, even although the remedy on the bill might have been lost, he ought to recover the amount of the consideration on the count for money had and received.

It is true, that in the case of Goodall v. Dolley. 1 Term rep. 712. It is said that the fact of the drawer’s having no funds in the hands of the drawee, would not discharge the obligation of the holder to give notice to the indorser, to whom he meant to resort; yet it is also expressly stated that the indorser was ignorant of all the circumstances of the case. That opinion, therefore, can not affect the present case in which the indorser knew the circumstances.

As to the question whether reasonable notice is matter of law to be determined by the court, or matter of fact to be determined by the jury: The practice in England, until lately, was for the jury to determine, by the cir

cumstances of each particular case, what time was reasonably to be allowed either for making demand or giving notice. Kyd, 127. (77.) Doug. 515, (497) Russel v. Langstaffe. Doug. 681. Rushton v. Aspinall.

In the case of Tindall v. Brown, 1 Term rep. 167. Lord Mansfield says, that "what is reasonable notice is "partly a question of fact, and partly a question of law. "It may depend in some measure on facts; such as the "distance at which the parties live from each other, the "course of the posts, &c. But whenever a rule can be "laid down with respect to this reasonableness, that should "be decided by the court, and adhered to by every one "for the sake of certainty." And Ashhurst, justice, said it was "of dangerous consequence to lay it down as a "general rule, that the jury should judge of the reasona-"bleness of time. It ought to be settled as a question of "law. If the jury were to determine this question in "all cases, it would be productive of endless uncer-"tainty."

It appears to have been the opinion of both these judges, that there were certain cases in which it was proper for the jury to determine on the reasonableness of notice; but that in cases where a rule can be laid down, the court ought to decide the question. No certain rule can be laid down, except in cases where the parties live in the same place, or where there is a constant and regular communication by post between them.

In a much later case 2. H. Blackstone's rep. 569, it was determined that what was reasonable time, must depend on the particular circumstances, and it must be always for the jury to determine whether any laches is to be imputed to the plaintiff.

In the case of Mackie v. Davis, 2. Wash. 231, Carrington, justice, says "whether due diligence had been "used by the assignee to recover against the obligor would " necessarily be a matter in issue between the parties, and "would, upon all the circumstances of the case, be de-"cided by the jury."

1. Dal. 252, is to the same effect. A case to the same

effect also has been mentioned as having been decided in the circuit court of the United States, in Virginia, by judge Wilson.

The instruction of the court below to the jury, that reasonable notice was necessary to charge the defendant on the first count, was not objected to by the plaintiff's counsel; but the court not having instructed them whether the notice was or was not reasonable, and a general verdict for the plaintiffs having been given, it is to be presumed that the jury thought the notice was reasonable under all the circumstances; and they were certainly competent to decide that question.

The decisions, that notice must come only from the indorsee or the holder, have been since over-ruled. Evans, 57.

3. As to the letters of administration.

An administrator, in the United States, ought not to be considered precisely in the same point of view as in England.

In England, he is the servant or agent of the ordinary, and acts in his place and stead.

In the United States, he is the representative of the intestate; and all the rights and credits of the intestate are vested in him.

Formerly in England, the goods of an intestate were disposed of by the bishop or ordinary to pious uses. It was not until the statute of 13th Ed. 1. c. 19, that the bishop or ordinary was compelled to satisfy the debts of the intestate as far as the goods, which came to his hands, would extend.

After this statute, an action might be brought against the ordinary in the same manner as against an executor; but he was not compellable to grant administration until the statute of 31st, Ed. 3d. c. 11.

From this relation between the ordinary and the administrator the power of the latter was necessarily limited

by the jurisdiction of the former. But the act of congress concerning the district of Columbia puts the question out of doubt. By that act, the laws of Maryland are continued in force in this part of the district; of course, all rights acquired under the laws of Maryland remained valid. It was not the intention of congress to divest any rights which had been acquired under those laws. If the separation of the district from Maryland took away the right which the plaintiffs before possessed of taking possession of the property and collecting the debts of the intestate, in this part of the district, under their letters of administration granted in Baltimore county, it would have the same effect upon letters granted by the orphan's courts of Montgomery and Prince George's counties, before the separation, to persons resident in the district, so that their acts, done since the separation, are unauthorized, and they cannot lawfully act until new administration has been taken out from the orphan's court within the district. The inconvenience, expense and oppression of such a construction, are too obvious to admit the supposition that it was within the intention of congress.

These letters were taken out from the proper authority, and at the time, vested a right in the plaintiffs to administer the assets within this part of the district.

1st. As to the letters of administration.

Admitting that letters of administration, granted out of the state of Maryland, will not authorize an administration of assets within the state, yet in this case the letters were granted in Maryland while this district was part of Maryland, before the 1st Monday of December 1800, and did once authorize an administration of the assets here. A right was completely vested in the plaintiffs. The laws of Maryland are as fully in operation in this district as they were or are in the state of Maryland. Congress could not mean to divest rights completely vested.

2d. As to the second bill of exceptions.

It is admitted that Hanson was duly appointed notary, but the objection is that he had not taken the oath. The

exception is not to the opinion of the court that he was not duly qualified to act; but simply that it was not competent for the defendant to give the evidence offered to prove that he had not taken the oaths. The intention of an oath is only to impose an additional obligation on the officer. It is a matter between the officer and the government; and generally a penalty is imposed for not taking it; but the not taking the oath does not make the act void. Suppose a member of the legislature should not take the oath prescribed; this would not vacate a law to which he had given his assent. Such a doctrine would produce infinite inconvenience. No time is limited for making the objection; and twenty years after an act has been done, it may be offered to be proved that the officer did not take the oath; if the court would do right in refusing such evidence in that case, they were right in refusing it in the present.

3d. The third bill of exceptions is, that the court admitted the protest for non-payment to go to the jury, when it was not made in due time.

The action being for non-acceptance, and not on the protest for non-payment; it was not necessary to produce that protest at all. The objection is that it was not made on the last day of grace, but on the day after.

The custom is different in different countries. From the general practice of the banks, it may be considered as the general rule in this country to protest on the day after the last day of grace.

The protest for non-acceptance is not objected to; it was made on the day on which the bill was presented.

The court only refused to give the direction as prayed, but gave no opinion that the protest was a good one.

4th. As to the fourth bill of exceptions.

This reccord does not state the whole evidence in the cause. It is true it is said that this is all the evidence given of notice; but it does not state what other evidence there might be to excuse the want of notice. This ex

ception may be divided into three points; first, as to the opinion prayed; second, as to the conduct of the court in not giving an opinion as to part of the prayer, and thirdly, as to the opinion which the court did give.

The prayer is to instruct the jury that it was necessary to prove notice of non-payment as well as of non-acceptance. The plaintiffs, if any body, had a right to complain of the opinion of the court, in as much as it did not declare notice of non-payment to be unnecessary. But they have waved their right to except. The opinion given is what is excepted to, and that was given only on the count for money had and received.

The bill and indorsement are stated to have been made in France. The law of France then is the Lex Loci, by which this cause is to be decided, and by which the liability of the indorser is to be ascertained. By that law no notice is necessary to the drawer or indorser, if there are no effects of the drawer, or of the indorser, in the hands of the drawee. Evans 60, 62.

And what is meant by funds, is not securities lodged for raising money, upon which the money has not been raised; but is money in account. 2 Esp. rep. 515. Evans 62.

As to the ground of fraud, the court left it to the jury to decide whether the defendant knew that the drawer had no funds in the hands of the drawees. If he did know it, is it not as much a fraud as in the case of a drawer drawing without funds? It is in fact an accumulated fraud. If, according to justice Ashhurst, one is a fraud, the other must be a greater fraud.

As to due diligence, the exception is not that no notice was given, but that it was not given in due time. No doubt but that by the laws in England, due notice is necessary as a general rule. But to this there are exceptions.

There is an American law on this subject, which is, that in some cases the jury, and not the court, is to decide what is laches. When a particular case arises, and a variety of circumstances are given in evidence in ex

cuse for not giving notice sooner, there, by the American practice, the jury are to decide. This appears by the decisions in Pennsylvania down to the year 1795. 1 Dallas, Robertson v. Vogle. 2 Dal. 158 . Bank of N. America v. M‘Knight. 2 Dal. 192 . 233. 1 Call’s rep. 123. M'Williams v. Smith.

In this country the line is more distinctly drawn between court and jury than it is in England. By the 9th article of the amendments to the constitution, a matter once tried by a jury shall not be otherwise re-examined than by a jury according to the rules of the common law. If the court now make a rule as to what is due diligence in this case, they will without a jury try a fact which has once been decided by the jury in the court below.

If the question involve matter of fact with the law, the jury must decide the facts; and it is no error in the court to suffer them to decide the law also at the same time.

When a rule can be laid down, then the court is to state the rule. But where that can not be done then it may be left to the jury. This is all that lord Mansfield says in in the case of Tindall v. Brown.

5th. The fifth is an exception to the opinion which the court gave, and not to the conduct of the court in not giving an opinion. The opinion given was against the plaintiffs below, and they alone had a right to except to it.

There was a decision of chief justice Jay, given upon the circuit, similar to that given by judge Wilson, that the jury and not the court were to judge of the validity of excuses for giving notice.

The judgment ought not to be reversed because the court below did give an improper instruction to the jury.

It is hoped that the court will decide the question of notice as it is of great importance that a general rule should be established and understood.

1st. As to the letters testamentary.

Antecedent to the revolution the testamentary affairs in the state of Maryland were under the superintendance of a commissary general, who had a deputy in each county. If there were bona notabilia in several counties, the administration was granted by the commissary general. But if the goods of the intestate were all in one county it might be granted by the deputy commissary of that county. By the new system of testamentary laws, 1798 ch. 101. § 3. the assets in Maryland connot be administered but by letters of administration granted in Maryland.

In the district of Columbia, if a man now die intestate, the administration must be granted in the district.

The laws of Maryland do not operate in the district as laws of Maryland, but as laws of the United States. Their obligatory force is not derived from the state of Maryland, but from the United States.

Does the fact that the letters were granted before the separation of the district from Maryland, make any difference? If any right had vested, what was it? Was it a right to sue Fenwick who was then in France, and who came to the district after its separation.

But no right at all had vested in the plaintiffs. If the separation had not taken place, and Fenwick had come, they might have sued; but as it had taken place before he came, they can not.

By the laws of this part of the district, the administrator must give bond duly to administer the estate, and to pay the debts pari passu. He must advertise in a certain manner, &c. The only evil resulting from this construction of the law is, that plaintiffs must take out letters of administration here.

2d. As to the second bill of exceptions. The question is, whether Hanson was a notary before he took the oath

prescribed by the law of 1779. The constitution says, that before he enters upon the execution of the duties of his office he shall take the oath of allegiance. The law of 1779 says, he shall take the other oath therein prescribed, and if he acts without having taken it he shall be subject to a penalty. The constitution and the law are to be coupled together, and then the taking the oath prescribed by the act of 1779, becomes a pre-requisite to his capacity to act as notary.

3d. The third bill of exceptions is that the protest for non-payment was not a proper one to go to the jury. It was not in itself evidence. It is no answer to say that no protest for non-payment was necessary; the counsel below did not chuse to risk their cause without it. If the opinion of the court is erroneous, and if the protest was improperly admitted to go to the jury, the judgment must be reversed. It may be a good reason why the court should refuse to let it go to the jury, that it was not necessary. It is therefore unimportant to decide whether it was necessary or not. But that it was necessary appears in Kyd, 120, 137, 138, (77, 87.)

As to the case of the notary who refused six pence for noting the bill, 4 Term rep. 173. It is the opinion of lord Kenyon only, that the acceptor had till the last moment of the last day of grace to pay the bill; and that was the case of an inland bill, and decided expressly upon the statute of William. But Buller states the law to be otherwise on a foreign bill, and that, by the custom, the bill is payable at any reasonable time of the last day of grace when demanded. And the law is so stated in Kyd, 121, (78.) The practice in Alexandria may be as stated, but in Baltimore they protest on the 3d day, in banking hours. There is a difference between the law respecting inland and foreign bills; and this difference arises from the statute of William, which gives the protest on inland bills and requires it to be made after the expiration of the three days, Kyd, 151, (91.) It is upon this statute, which is in force in Maryland, that the banks have adopted the practice of protesting promissory notes on the day after the expiration of the three days of grace. A promissory note as soon as it is indorsed becomes an inland bill of exchange.

4th. It is objected to the fourth bill of exceptions that it does not contain the whole evidence. But if a bill of exceptions states evidence, it has been decided by this court that it is presumed to state the whole evidence. 3 Dal. 19 , 38, Bingham v. Cabott.

It is said that the exception is not to the refusal of the prayer, but to the opinion which was given. If the opinion prayed was correct, and the court refused to give it, or, by being divided, failed to give the instruction to the jury as prayed, it is error. The court will disregard the inaccurate form of words, and come at the substance of the exception.

As to the want of funds in the hands of the drawees, the court are to presume that the whole evidence is stated in the exception. We deny the principle that such funds can be only money in account. There was reason for Fenwick to believe that the drawees had funds, and he ought therefore certainly to have had notice. There is not the least ground for a suspicion of fraud in Fenwick.

As to the count for money had and received, it is a common law count; but upon that count the plaintiffs can not recover by means of evidence resulting from that bill, unless they have done every thing to entitle them to recover upon the bill itself, by using due diligence, giving due notice, &c.

It is said that the indorsement was made in France, and therefore the law of France is to decide the responsibility of the indorser; and that by that law notice is not necessary to the indorser, if neither the indorser nor the drawer has funds in the hands of the drawee; and Evans is cited as the authority. It is doubted whether Evans is correct in that position; but whether correct or not, it does not apply, because the money was to be paid here, and the contract is personal. If Fenwick had been sued in France it might have applied; but being sued here, the law of this country must decide his case.

As to the questions what is due notice, and whether it be a matter of fact or of law, the decisions cited from Dallas are no authorities in this case. They all turned