Hildeburn v. Turner

THIS case came up on a certificate of division in opinion from the Circuit Court of the United States for the Southern District of Mississippi.

The point of difference is fully set forth in the opinion of the court.

It was argued by Mr. Brent, for the plaintiff, and Mr. Bibb, for the defendant.

Mr. Brent, for plaintiff.

The single question is on the admissibility of the notarial protest; and, if admissible for any purpose, it is competent evidence. The bill of exchange is drawn in Mississippi, payable in Louisiana; and, in such case, the protest is evidence by the law merchant. 2 Pet., 593; 2 Pet., 691; Waldron v. Turpin, 15 La., 555; 5 Mar. La., N. S., 513. On this head, I also refer to the statute of Louisiana, 1827 (Bull. & C. Dig., 13, 43), and to 14 La., 394; Franklin v. Verbois, 6 Id., 730. The demand is presumed to be made in business hours. Fleming v. Fulton, 6 How. (Miss.), 484. I also refer to the decision of this court in Musson v. Lake, 4 How., 262, and to Brandon & Lofftus v. Whitehead, 4 Id., 127; also to Bank of the United States v. Carneal, 2 Pet., 549.

Mr. Bibb, for defendant.

The objection taken to the reading of the protest offered in evidence was, that the protest did not contain a sufficient statement of the presentment of the bill for payment.

The bill was drawn by A. G. Bennett, at Canton, Mississippi, on H. F. Bennett, at same place, in favor of Henry Turner, in New Orleans, for $995.04, payable at the Merchants' Bank of New Orleans twelve months after date. Accepted by H. F. Bennett, indorsed to Samuel Hildeburn by Henry Turner, and to A. H. Wallace & Co., by the indorsee, Hilderburn.

The notary in his protest for non-payment states,-'At the request of the Merchants' Bank of New Orleans, holder,' 'I presented said draft to the proper officer at the Merchants' Bank, where the same is made payable, and demanded payment thereof. I was answered that the same could not be paid.' Whereupon he protested, &c.

No person is named to whom he presented the bill for payment.

The notary has undertaken to judge a matter of law, instead of certifying the name of the person supposed to be the proper officer of the bank. Was he the president, or the cashier, or a director? Who was he? What was his name?

The notary presented the bill to an officer of the holder, and demanded payment of the holder's servant or agent.

The notary should have exhibited the bill opently and publicly at the bank, and demanded payment openly and publicly, so that all persons at the bank, or in hearing, might have had notice.

As the presentment of the bill was not to the acceptor, nor to any person in his employ, the demand of payment, at the place appointed in the body of the bill, should have been general and public, so that any person interested might have taken up the bill.

The person, the name of the person, to whom the presentment and demand of payment was made, should have been stated.

See Chitty on Bills and Form of Protest (9 Lond. ed.), 462.

Mr. Chief Justice TANEY delivered the opinion of the court.