Nicholls v. Webb

• Citation: 21 U.S. 326,5 L.Ed. 628,8 Wheat. 326
• Parties: NICHOLLS, Plaintiff in Error , v. WEBB, Defendant in Error
• Decision Date: 22 February 1823
• Court: United States Supreme Court

21 U.S. 326

5 L.Ed. 628

8 Wheat. 326

NICHOLLS, Plaintiff in Error, v. WEBB, Defendant in Error.

February 22, 1823

ERROR to the District Court of Louisiana. This was a suit brought by petition, according to the course of proceedings in Louisiana,^a by Webb, the defendant in error, against Nicholls, the plaintiff in error, upon a promissory note, dated the 15th of January, 1819, made by one Fletcher, for the sum of 4880 dollars, payable to the order of Nicholls, at the Nashville Bank, and endorsed by Nicholls, by his agent, to Webb. The answer of the defendant below denied such a demand, and notice of non-payment, as were necessary to render him liable as endorser. At the trial it appeared in evidence, that the note became due on the 18th of July, which was Sunday. The demand of payment of the maker was made, and notice of non-payment to the endorser, was given at the request of the plaintiff below, by one Washington Perkins, a notary public, who died before the trial. The original protest was annexed to the plaintiff's petition, and was drawn up according to the usual formula of that instrument, stating a demand and refusal of payment at the Nashville Bank, on Saturday, the 17th of July, the 18th being Sunday, and that he, the notary, 'duly notified the endorsers of the non-payment.' The plaintiff offered this protest, among other evidence, to support his cause, together with the deposition of Sophia Perkins, the daughter of the notary. This witness stated, in her deposition, that her father kept a regular record of his notarial acts, and uniformly entered, in a book kept by himself, or caused the deponent to enter, exact copies of the notes, bills, &c. which he protested; and in the margin opposite to the copy of the protest, made memorandums after notification to endorsers, if any, of the fact of such notification, and the manner; and that his notarial records had been, ever since his death, in the house where she lived. And to her deposition she annexed, and verified as true, a copy of the protest in this case. The copy of the protest stated the demand (as supposed by mistake) to have been made on the 19th, instead of the 17th of July, 1819, and contained the following memorandum on the margin.

'Endorser duly notified in writing 19th of July, 1819, the last day of grace being Sunday, the 18th. Washington Perkins.' In other respects the protest was in the same form with that annexed as the original to the plaintiff's petition. The defendant below objected to the admission of this protest and deposition in evidence, but his objection was overruled by the Court. Whereupon the defendant excepted, and the jury returned a verdict for the plaintiff; upon which, the Court, according to the usual practice in Louisiana, ascertained the sum due, and rendered judgment. The cause was then brought by writ of error to this Court.

Feb. 15th.

This cause was argued by Mr. Eaton, and Mr. C. J. Ingersoll,^b for the plaintiff in error, and by Mr. Sergeant,^c for the defendant in error. But as the grounds of argument and the authorities are so fully stated in the opinion of the Court, it has not been thought necessary to report their arguments.

Feb. 22d.

Mr. Justice STORY delivered the opinion of the Court.

This is a writ of error to the District Court of Louisiana. The suit was brought by Mr. Webb, as endorsee, against Mr. Nicholls, as endorser of a promissory note, dated the 15th of January, 1819, and made by Thomas H. Fletcher, for the sum of 4880 dollars, payable to Nicholls or order, at the Nashville Bank, and endorsed by Nicholls, by his agent, to the plaintiff. The note became due on the 18th of July, which being Sunday, the note, of course, was payable on the preceding Saturday. The cause came on for trial upon petition, and answer, according to the usual course of proceedings in Louisiana, the answer setting up, among other things, a denial of due demand, and notice of non-payment; and upon the trial, the jury returned a verdict for the plaintiff. The Court, thereupon, ascertained the sum due, and entered judgment for the plaintiff, according to what is understood to be the usual practice of that State.

Several questions have been argued at the bar, which may be at once laid out of the case, since they do not arise upon the record; and we may, therefore, proceed to examine that alone upon which any judgment was pronounced in the Court below.

From the issue in the cause, the burthen of proof of due demand of payment, and due notice of the non-payment to Nicholls, rested on the plaintiff. It appears, that the demand was made, and notice given, at the request of the plaintiff, by one Washington Perkins, a notary public, who died before the trial. The original protest was annexed to the plaintiff's petition, and contained the usual language in this instrument, stating a demand, and refusal of payment at the Nashville Bank, on the 17th of July, the 18th being Sunday, and that he, the notary, 'duly notified the endorsers of the non-payment.' Among other evidence to support the plaintiff's case, he offered this protest, together with the deposition of Sophia Perkins, the daughter of the notary. She stated, in her deposition, that her father kept a regular record of his notarial acts, and uniformly entered, in a book kept by himself, or caused the deponent to do it, exact copies of the notes, bills, &c. and in the margin opposite to the copy of the protest made memorandums after notification to endorsers, if any, of the fact of such notification, and the manner; and that his notarial records had been, ever since his death, in the house where she lived. And to her deposition, she annexed, and verified as true, a copy of the protest in this case. The copy of the protest states the demand (most probably by mistake) to have been made on the 19th, instead of the 17th of July, 1819, and contains a memorandum on the margin: 'Endorser duly notified in writing 19th of July, 1819, the last day of grace being Sunday, the 18th. Washington Perkins.' In other respects the protest is the same in form as that annexed to the petition. To the introduction of this deposition, as well as of the protest, as evidence, the defendant, Nicholls, objected, and his objection was overruled by the Court, and the papers were laid before the jury. A bill of exceptions was taken to the decision of the Court in so admitting this evidence; and the sole question now before us, is, whether that decision was right. What that evidence might legally conduce to prove, or what its effect might be, if properly admitted, is not now a question before us. It was left to the jury to draw such inferences of fact as they might justly draw from it; and whether they were right or wrong in their inferences, we cannot now inquire.

It does not appear that, by the laws of Tennessee, a demand of the payment of promissory notes is required to be made by a notary public, or a protest made for non-payment, or notice given by a notary to the endorsers. And by the general commercial law, it is perfectly clear, that the intervention of a notary is unnecessary in these cases. The notarial protest is not, therefore, evidence of itself, in chief, of the fact of demand, as it would be in cases of foreign bills of exchange; and in strictness of law, it is not an official act. But, we all know, that, in point of fact, notaries are very commonly employed in this business; and in some of the States it is a general usage so to protest all dishonoured notes, which are lodged in, or have been discounted by the bank. The practice has, doubtless, grown up from a sense of its convenience, and the just confidence placed in men who, from their habits and character, are likely to perform these important duties with punctuality and accuracy. We may, therefore, safely take it to be true in this case, that the protesting of notes, if not strictly the duty of the notary, was in conformity to general practice, and was an employment in which he was usually engaged. If he had been alive at the trial, there is no question that the protest could not have been given in evidence, except with his deposition, or personal examination, to support it. His death gives rise to the question, whether it is not, connected with other evidence, and particularly with that...