May v. Jones

• Citation: 14 S.E. 552,88 Ga. 308
• Parties: MAY v. JONES et al.
• Decision Date: 07 December 1891
• Court: Supreme Court of Georgia

14 S.E. 552

88 Ga. 308

MAY v. JONES et al.

Supreme Court of Georgia

December 7, 1891

Syllabus by the Court.

1. It is libelous, and therefore actionable, for a notary public falsely and maliciously to protest for non-payment the acceptance of a person engaged in manufactures, and then send the draft, together with such protest, "to the source from whence it came." That the protest shows on its face that no proper legal demand was made for payment will not render the liable harmless to the credit and business of the acceptor, since to be published as one who has dishonored his commercial paper tends naturally to produce injury.

2. As a general rule, a bank is not responsible for a malicious protest made and published by a notary public rightly employed by it, such notarial act being that of a public officer; and it makes no difference that such notary is also an employe and agent of the bank.

3. In order to render the bank liable, it would at least have to be alleged that it shared maliciously in the production or publication of the libel. An allegation "that the action of the notary in the matter, he acting under the authority of the bank, is the action of said bank," is not sufficient to charge the bank as a joint tort-feasor with the notary.

4. A joint demurrer by two defendants to a declaration for want of a cause of action should be overruled if the declaration sets forth a cause of action as to either of the defendants.

Error from city court of Atlanta; HOWARD VAN EPPS, Judge.

Action of libel by George S. May against J. H. Jones and others. Judgment for defendants on demurrer. Plaintiff brings error. Reversed.

R. J Jordan, for plaintiff in error.

Rosser & Carter, for defendants in error.

LUMPKIN J.

May brought his action of libel against Jones and the Merchants' Bank of Atlanta for damages to his credit and standing as a business man by reason of a certain draft being protested for nonpayment by said Jones, who was a notary public, and also an employe and agent of the bank. The defendants joined in a demurrer to the declaration on the grounds that there was no cause of action set out as for a libel; that there was no cause of action set out as for a wrongful protest; and that the bank was not liable for the acts of Jones under the allegations in the declaration. The judgment on this demurrer recites that the plaintiff's attorney disclaimed in open court any claim for damages for a wrongful protest, but advised the court that the declaration was intended to be a claim for damages as for a libel only whereupon the court sustained the demurrer, and dismissed the case, because the declaration contained no legal cause of action. This is the error complained of.

1. The declaration shows that the draft was accepted by the plaintiff, payable at the Atlanta National Bank. In the course of business, after several indorsements, it came to the Merchants' Bank of Atlanta for collection. It was protested by Jones without due presentment for payment at the Atlanta National Bank. The plaintiff avers that he had no notice, before the protest, that the draft was at the Merchants' Bank, and as soon as he learned this fact he went there and tendered the amount of the draft,--that amount being $45.22,--which was refused because it had been protested; that at the time of the protest he had several hundred dollars to his credit at the Atlanta National Bank and the draft, if presented, would have been promptly paid by this bank; that the protest and draft were sent to the source from whence it came; and that the charges in the protest "are false, fraudulent, and malicious, and were made in reference to plaintiff's trade, and calculated to injure him in his trade or business." No doubt, as against Jones, a cause of action is sufficiently set out. The declaration distinctly alleges that the charges in the protest were false, fraudulent, and malicious, and made in reference to the plaintiff's trade. Without a due presentment for payment at the place designated in the acceptance there was no legal basis for the protest. The object of the protest being to bind the indorsers, due diligence required a presentment at the place where funds were probably lodged to meet the acceptance. 1 Daniel Neg Inst.§§ 644; 2 Daniel, Neg. Inst. §§ 952, 955; Woods' Byles, Bills, *216, and notes. The protest being without proper foundation, false, malicious, and calculated to injure a business man's credit, its promulgation and publication constitutes a libel, for which the plaintiff may maintain an action. Townsh. Sland. & L. p. 2, note; Newell, Defam. p. 74; Odger, Sland. & L. *13; 13 Amer. & Eng. Enc. Law, 314. See Williams v. Smith, 22 Q. B. Div. 134. It matters not that the protest carries on its face evidence of its own invalidity. Its validity would probably pass unquestioned, even by those who saw the writing, on the presumption in favor of the official act. As to this presumption, see McAndrew v. Radway, 34 N.Y. 511. Moreover, the hurtful consequences to the acceptor's credit would not be confined to those parties immediately interested to inquire into the regularity of the protest. The news of the protest would be quickly spread to each indorser, and become a matter of common knowledge in his business circle. It would run through the complex avenues of trade beyond pursuit and correction by the true character of the protest. The case of Van Epps v. Jones, 50 Ga. 238, does not conflict with this ruling, but rather sustains it. That was an action in the nature of libel against a notary for a false protest, and this court held that the declaration was demurrable because it did not allege that the false statement was made in reference to the plaintiff's profession as an attorney at law. Here the declaration expressly charges that the statements were "made in reference to plaintiff's trade, and calculated to injure him in his trade, or business."

2. But, as against the Merchants' Bank, no cause of action is set out. The plaintiff's theory is that, as Jones, the notary public, was also an employe and agent of the bank, "the action of defendant Jones in the matter, he acting under the authority of defendant bank, is the action of said bank." This is all the allegation touching the bank's liability. Although there is conflict in the cases, the prevailing and better holding seems to be that a bank is not liable for the negligence or misconduct of a notary employed by it to protest negotiable paper. The reason is that the notary is not a mere agent or servant of the bank, but is a public officer, sworn to discharge his duties properly. He is under a higher control than that of a private principal. He owes duties to the public which must be the supreme law of his conduct. Consequently, when he acts in his official capacity, the bank no longer has control over him, and cannot direct how his duties shall be done. If he is guilty of misfeasance in the performance of an official act, the bank is not liable. 1 Morse, Banks, §§ 102 d, 265; Bolles, Banks, § 465; 2 Amer. & Eng. Enc. Law, 113; 16 Amer. & Eng. Enc. Law, 763; notes to Allen v. Bank, 34 Amer. Dec. 313; Hyde v. Bank, 17 La. 560, 36 Amer. Dec. 621; Tiernan v. Bank, 7 How. (Miss.) 648, 40 Amer. Dec. 83; Agricultural Bank v. Commercial Bank, 7 Smedes & M. 592; Britton v. Niccolls, 104 U.S. 757; Bank v. Butler 41 Ohio St. 519. Allen v. Bank,

...