Miltenberger v. Spaulding
| Decision Date | 31 March 1863 |
| Citation | 33 Mo. 421 |
| Parties | EUGENE MILTENBERGER et al., Appellants, v. JOHN W. SPAULDING et al., Respondents. |
| Court | Missouri Supreme Court |
Appeal from St. Louis Circuit Court.
S. Voullaire, for appellants.
To hold the drawer, demand must be made, or due diligence exercised to make a demand. As to what is due diligence is a question of law; but there is no universal rule. It depends altogether upon the circumstances of each case. (1 Par. Bills, 443; Plahto's Adm'r v. Patchin, 26 Mo. 389.) The presentment of this bill of exchange was sufficient.
The demand by the notary's clerk must be sufficient here if it was in accordance with the uniform usage there.
A demand upon one partner is sufficient. (1 Pars. Notes, 362; Otsego Co. Bank v. Warren, 18 Barb. 290; Erwin v. Downs, 15 N. Y. 575; Brown v. Turner, 15 Ala. 832; Hunter v. Hempstead, 1 Mo. 67.)
A demand at the residence of the acceptor is sufficient even though he have a well known place of business.
The demand of the servant and in her presence was sufficient to indicate the nature of the notary business. It was not necessary to leave a message. (Bills v. Holmes, 11 Ired. 16; Dufour v. Morse, 9 La. 333; Bank v. Allin, 16 Maine, 41; Hawkins v. State, 7 Mo. 190; Fackler v. Chapman, 20 Mo. 249; Marr v. Hill, 10 Mo. 320; Wadlow v. Perryman, 27 Mo. 279.)
Under the common law, outlaws and villeins of the soil could be appointed agents. (Sto. Ag. 9; Com. Dig., Attor. C. 4.)
Under the civil law, a slave could be an agent. (Sto. Ag. 10.)
H. N. Hart, for respondents.
There is no rule of the law-merchant better settled than that the endorser of a bill of exchange is liable as guarantor, not by reason of any express obligation, but by obligation of law; and for his protection the law annexes to his liability as a condition, that all reasonable endeavors shall be made to procure payments from those who are liable before him, in order to fix his liability. (1 Pars. on Con. 223.)
But it is insisted that calling to make demand at the residence of one partner, especially in the manner in which it is proved to have been done in this instance, without application at the last place of business of the firm, and without application at the residence of either of the other partners, cannot be held to be a good and sufficient presentment and demand. Indeed, in no case can a demand at the residence of one partner only, of a servant, (a negro servant,) without word, be considered as filling that measure of diligence which the law requires. (Edw. on Bills, 483; 3 Kent, 104; Ellis' Adm'r v. Commercial Bank of Natchez, 7 How., Miss., 294, 303; The Granite Bank v. Ayers, 16 Pick. 392; Porter v. Judson, 1 Gray, Mass., 175; Pierce v. Pendar, 5 Metc. 352; Phipps v. Chase, 6 id. 691; Rives v. Parmly, 18 Ala., 256, 262.)
This was a suit by the endorsees of a foreign bill of exchange against the endorsers. The acceptors resided in the city of Baltimore, and the demand was made by the clerk of the notary public; and one of the questions presented by the record is, whether such a demand can be made by the clerk of a notary. This bill was drawn in Missouri upon parties residing in Maryland, and is therefore placed upon the footing of a foreign bill, for in this respect the several States of the Union are considered as foreign to each other. Gilmer, the notary public who protested the bill for nonpayment, states in his deposition that he did not present the bill for payment, but procured one of his clerks to make the demand; that it was customary in Baltimore for notaries to employ clerks, and the clerks so employed frequently made demands, though he knew of no statute in Maryland which authorized it. The record also contains the deposition of the clerk, showing that the demand was made by him at the request of the notary.
The books furnish several cases in which the right of a clerk to make the demand is contented for. In Nelson v. Fotterall, 7 Leigh, 176, the Court of Appeals of Virginia, after a laborious investigation of the subject, held that the presentment of a bill by the clerk of a notary was regular and legal, more particularly if sanctioned by local usage. The same is implied in Poole v. Dicas, 1 Bing., N. C., 649. In Sutton v. Gregory, Peake, Add. cases, 150, Lord Kenyon ad mitted evidence of an entry made by a clerk in a notary's book, to prove presentment of a bill of exchange, and there are several reported cases in which plaintiffs recovered on the evidence of a demand by a clerk, but in none of them was the question directly raised. Notwithstanding these cases and probably others, which we may have overlooked, it is very clear that the weight of authority is largely against it.
In Lofty v. Mills (4 T. R. 170), demand was made by a clerk, and a doubt was expressed as to its propriety, notwithstanding it was an inland bill. J. Butler observed: “The demand of a foreign bill must be made by a notary public, to whom credit is given, because he is a public officer.”
In Chitty on Bills it is said that the presentation must be made by the notary public himself, as an accredited public officer, and will not be good if presented by his clerk. The same doctrine is maintained in Sainder v. Brown, 3 McLean, 481; Chenowith v. Chamberlain, 6 B. Mon. 60; Carter v. Union Bank, 7 Humph. 548; Carmichael v. The Bank of Pennsylvania, 4 How. (Miss.) 567; The Onondaga Bank v. Bates, 3 Hill, 53; Ellis v. Commercial Bank of Natchez, 7 How. (Miss.) 294, and many other cases unnecessary to cite. As proof of protest is necessary to recover in a foreign bill, it should appear that the demand was made by a duly authorized officer. A notary public is a commissioned and sworn officer, clothed with certain powers, and in many States required to give bond for the faithful discharge of his duties, and as he is supposed to be appointed with reference to his capacity and integrity, he is entitled to a certain degree of public confidence; but not so with...
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