Thomas Cookendorfer, Plaintiff In Error v. Anthony Preston, Defendant In Error

• Decision Date: 01 January 1846
• Parties: THOMAS COOKENDORFER, PLAINTIFF IN ERROR, v. ANTHONY PRESTON, DEFENDANT IN ERROR
• Court: U.S. Supreme Court

45 U.S. 317

4 How. 317

11 L.Ed. 992

THOMAS COOKENDORFER, PLAINTIFF IN ERROR, v. ANTHONY PRESTON, DEFENDANT IN ERROR.

January Term, 1846

THIS case came up, by writ of error, from the Circuit Court of the United States for the District of Columbia, in and for the county of Washington.

The case was this.

On the 17th of May, 1839, E. T. Arguelles gave the following note.

$300.

Washington, May 17, 1839.

On the first day of February next, I promise to pay to Thomas Cookendorfer, or order, three hundred dollars, for value received, negotiable and payable at the Bank of Washington.

(Signed,) E. T. ARGUELLES.

(Indorsed,) THOS. COOKENDORFER.

ANTHONY PRESTON.

This note was deposited in the Bank of Washington, for collection. Not being paid at maturity by the drawer, it was protested

under the circumstances and in the manner stated in the bill of exceptions.

In February, 1842, a suit was brought by Preston, the indorsee, against Cookendorfer, the indorser, which resulted in a verdict and judgment for the plaintiff.

The following bill of exceptions shows the points of law which were raised and ruled at the trial.

Memorandum. Before the jurors aforesaid retired from the bar of the court here, the said defendant, by his attorney aforesaid, filed in court here the following bill of exceptions, to wit:——

Defendant's Bill of Exceptions.

ANTHONY PRESTON v. THOMAS COOKENDORFER.

On the trial of this cause, the handwriting of the maker and indorser of the note in the declaration mentioned was admitted, and the plaintiff, to maintain the issue on his part joined, offered George Sweeny, who was admitted to be a notary public for the county of Washington, District of Columbia, lawfully commissioned and sworn, and by him they offered to prove that he, as such notary, was required by the Bank of Washington (who then held the said note for collection) to demand payment of the note mentioned in the declaration, and the said note was delivered to him by the said bank; and he did thereupon, on the 4th day of February, 1840, present the said note at the said bank, and did demand payment thereof at the said bank, and he was answered by the proper officer of the bank, 'that there were no funds there for it'; that he, the said notary, did, on the next day, to wit, the 5th day of February, 1840, deliver to the defendant a notice in writing, which notice being now produced to the witness by the defendant, is in the words and figures following:——

Notice of 5 February, 1840.

Washington, February 5th, 1840.

SIR:—A note drawn by E. T. Arguelles, dated the 17th May, 1839, for three hundred dollars, payable at 1-4 February, 1840, due, and by you indorsed, and for which you are accountable to the President and Directors of the Bank of Washington, has been this day protested for non-payment.

Your obedient servant,

GEORGE SWEENEY, Notary Public.

THOS. COOKENDORFER, Esq.

And he did, also, on the said 5th day of February, 1840, extend and record in his notarial register the protest of the said note, which is in the words and figures following:——-

Protest.

$300.

WASHINGTON, May 17, 1839.

On the first day of February next, I promise to pay to Thomas Cookendorfer, or order, three hundred dollars, for value received, negotiable and payable at the Bank of Washington.

(Signed,) E. T. ARGUELLES.

(Indorsed,) THOS. COOKENDORFER,

ANTHONY PRESTON.

DISTRICT OF COLUMBIA, Washington County, sct.

Be it known, that on the 4th day of February, 1840, I, George Sweeny, notary public, by lawful authority duly commissioned and sworn, dwelling in the county and District aforesaid, at the request of the President and Directors of the Bank of Washington, presented at the said bank the original note, whereof the above is a true copy, and demanded there payment of the sum of money in the said note specified, whereunto I was answered,—'There are no funds here for it.'

Therefore, I, the said notary, at the request aforesaid, have protested, and by these presents do solemnly protest, against the drawer and indorser of the said note, and all others whom it doth or may concern, for all costs, exchange, re exchange, charges, damages, and interests suffered and to be suffered for want of payment thereof.

In testimony whereof, I have hereunto set my hand and affixed my seal notarial, this 5th day of February, 1840.

GEORGE SWEENY, Notary Public.

[SEAL.]

Protesting, $1.75.

Recorded in protest-book G. S. No. 3, page

And the said witness further tectified, that he copied the form of the said notice from a form used by Michael Nourse, one of the oldest notaries in the city, and largely employed as notary, and that he made the demand and gave the notice in this case according to his usual practice, and that his said practice conformed, so far as he knows and believes, to the practice of the other notaries in the city of Washington.

And the plaintiff offered further evidence tending to prove the said practice of said notaries to be according to the statement made by Mr. Sweeny, and that the usual practice was, when a notice was to be sent abroad, to put it into the post-office, and date it on the third or last day of grace; but when the notices were to be delifered in the city of Washington, a latitude was allowed to the notary, either to deliver the notice on the third or last day of grace, or the day after the last day, and in all cases to date the notice on the day of its delivery, and the usage is to extend the protest on the day on which the notice is given, as in this case, stating the demand to have been made on the last day of grace, and the protest to be dated the same day on which the notice is dated.

And the said George Sweeny, on cross-examination, testified that he usually acted on behalf of the said Bank of Washington, at its request, as the notary in regard to notes and bills in said bank, and that he had given a bond, with security, to said bank, in the penal sum of $10,000, for the faithful performance of his duty as notary public in regard to said business, and that the note in controversy had been deposited by plaintiff in said bank for collection.

And the counsel for the defendant objected to the admissibility and competency of said George Sweeny as a witness, and the court overruled the said objection, and permitted the said Sweeny to be sworn, and to testify as aforesaid to the jury, to which the defendant, by his counsel, excepted, and prayed the court to seal this bill of exceptions, which is done accordingly.

And the said counsel for the defendant further objected to the admissibility and competency of the said testimony upon the subject of the practice and usage spoken of by the witness, but the court overruled the objection, and suffered the said testimony to go to the jury; whereupon the said counsel excepted.

And the said counsel for the defendant thereupon moved the court to instruct the jury, that the said evidence was not sufficient, if believed to be true, to show that payment of said note had been duly demanded and refused, and that due notice of such dishonor had been given to defendant so as to bind him.

But the court refused to give such instruction.

To each of which rulings of the court, in permitting the evidence as aforesaid to go to the jury, in refusing the instruction as prayed, the defendant, by his counsel, excepts, and prays the court to seal this bill of exceptions, which is accordingly done, this 7th day of April, 1843.

W. CRANCH. [SEAL.]

JAMES S. MORSELL. [SEAL.]

The cause was argued by Mr. Bledsoe and Mr. Coxe, for the plaintiff in error, and Mr. Bradley, for the defendant in error.

Mr. Bledsoe, for plaintiff in error, made three points:——

1. That the court erred in admitting the testimony of the notary public.

2. That the court erred in refusing the instruction asked for by the defendant's counsel.

3. That the declaration is radically and essentially defective.

1. It may be said, that the objection to the evidence of the notary public goes to his credibility rather than to his competency.

But inasmuch as the bank would be absolved from responsibility if the notary committed an error, and all the liability to the party injured by the fault would devolve upon the notary, it clearly became his interest to exonerate himself from it by proving that he committed no fault. His interest was strong and direct. Bayley on Bills, 251; 20 Johnson, 372; same case, 3 Cowen, 562.

If the plaintiff should fail in recovering from the indorser, on account of the ignorance or neglect of the notary in making a sufficient protest, the latter would become personally liable. His interest is to protect himself by securing a recovery from the indorser.

2. Supposing the evidence to be admissible, it is not sufficient.

A note must be presented for payment on the day that it falls due. When is that? On the last day of grace. The time of grace formed a part of the contract by the indorser. 1 Peters, 3.

But in this case it was presented on the third day of grace. This would have been proper under the general law inerchant, if that law prevailed in the District of Columbia. But it does not. It is controlled by a local usage, which is to allow four days of grace. 1 Peters, 34; 9 Wheat. 582.

Such an usage is part of the contract, whether the parties were acquainted with it or not. 11 Wheaton, 430.

A presentment too soon is a nullity. Bayley on Bills, 236.

No proof was offered in this case of the four days usage, but as it had been once proved and established, we were not bound to prove it again. It then became a part of the law. 1 Peters's C.C.R. 230; 2 Starkie (7th Lond. ed.), 360.

In 1 Peters, 34, there was no proof of this usage, but the court relied upon its having been proved before. There was proof of another usage, but none of that now in question.

It is apprehended that the counsel on the other side mean to make a distinction between notes discounted by banks and those left for...