Musson v. Lake/Dissent Woodbury

Mr. Justice WOODBURY.

I regret being compelled to dissent from a portion of the opinion of the majority of the court which has just been pronounced. This I should be content to do without explanation, if the grounds for it did not a pear to be misunderstood. I do not question that a note should be present usually when payment is demanded (Freeman v. Boynton, 7 Mass. R. 483; 17 Mass. R. 449; 3 Metcalf, 495); and that a written protest is the proper evidence to show a presentment or demand in the case of a foreign bill of exchange (8 Wheat. 333; Burke v. McKay, 2 Howard, 71). But, in my view, a protest like this was competent evidence to be submitted to the jury, in order that they might infer from it that the note was presented when the demand was made. That was the point presented by the division of opinion between the judges in the court below. One held it was competent evidence from which to make such an inference, and the other, it was not, and we are merely to decide which was right.

The question of due presentment and demand is a mixed one of law and fact, and not one of mere law, unless all the facts are first conceded or agreed (United States v. J. Barker, 1 Paine's C. C. R. 156). This is in analogy to the rule about notice (1 Peters, 583). In all cases where it is possible for the jury on any reasonable hypothesis to infer a proper presentment from the protest offered, it is safer that the writing should not be withdrawn from them, but go in, and the court instruct the jury on the whole evidence what the law was on such facts as they might be satisfied of. Chancellor Kent (3 Comm. 107) thinks it very difficult, in these mixed questions of law and fact about commercial paper, to do justice by any other course. In this case the jury might or might not be satisfied of the fact of the bill being present when the demand was made. But why not let them pass on that fact? It is manifest that no evil or danger would result from leaving the matter to them, under due instructions from the court, provided there be no legal obstacle to such a course.

Is there, then, any such obstacle?

It is conceded, on both sides, that the protest is competent evidence, and contains enough from which the jury could infer a demand of payment. That is the most material part of the notary's duty. It is not only so described in some elementary treatises, but the duty of having the note present, or of calling with it at the hours of business alone, are not described separately; but are involved or implied in the general duty of making a demand. Thus Dane, in his Abridgment, Bills of Exchange (art. 11, § 1), says, 'In making a protest, three things are to be done,-the noting, demanding, and drawing up the protest.' 'The material part is the making of the demand.' So the word demand is at times used as synonimous with the word presentment by Bailey. 16 Louisiana Rep. 311.

But the protest in this case states not only a demand, but that payment of the bill was refused, and that he had it in possession, so as to make a copy 'of the original draft' on the back of the protest, or, to use his own words, 'whereof a true copy is on the reverse hereof written,' and also 'demanded payment of said draft,' and was answered, 'that the same could not be paid.'

Under these expressions, it could hardly be deemed unfair, or any stretch of probability, to infer that the bill was present at the demand, and the more especially as the notary knew it was his duty to have it present, and does not state that any objection was made, or refusal to pay, on account of its absence, as he should have stated, if such was the truth. My views do not differ from those of a majority of this court concerning the importance of having the principles as to commercial law, and especially commercial instruments, uniform, and as little fluctuating as possible; and hence as to them I would make no innovation here. But our difference is rather on a question of evidence. Thus, had the testimony offered been submitted to the jury, and they had inferred from it a due presentment of the note, it would not change any commercial principle as to the necessity of presentment, but merely establish the fact of presentment here on evidence deemed by the jury to render that fact probable. And if juries should be disposed to find such a fact on slight testimony, it would do no injury to commercial paper, or commercial principles, or substantial justice between parties, but merely indicate an increased liberality as to forms, where substance has been regarded; that is, where the vital point in the transaction is beyond controversy, namely, that payment has clearly been demanded and not made. Such a course would accord, also, in spirit, with that was laid down by this court in 1 Peters, 583, that rules as to commercial paper ought to be formed and construed so as to be reasonable and founded in general convenience and with a view to clog as little as possible, consistently with the safety of parties, the circulation of paper of this description.

There is nothing in the nature of protests and presentments which on principle requires any increased strictness in the proof of them, but, on the contrary, much to justify every reasonable presumption in their favor. Any holder would be anxious to get his money at once of the drawee, and not neglect to have the note with him so as to give it up on payment and prevent delay. So would he wish to be paid and excused entirely from making protest, rather than resort to that and notice, and suffer the delay of recovering it of a drawer or indorser.

Both of these considerations strengthen the inference that he and his agent would present the note, or have it with them, when demanding payment, and render it reasonable, after slight proof of presentment, to leave it to the opposite party to rebut that inference, so natural, by stronger proof that the note was not present, if the facts would warrant such proof.

Another consideration against requiring great or greator rigidity in the evidence of a presentment and form of protest is the fact, that a protest is of less materiality than notice.

As an illustration, that the notice is deemed more material than the protest, 'omitting to allege in the declaration a protest of a bill is only form, not to be taken advantage of on a general demurrer.' 1 Dane's Abr., Bills of Exchange, ch. 20, art. 11, § 9; Lill. Ent. 55; 3 Johns. R. 202; Salomons v. Staveley, Doug. 684, in note to Rushton v. Aspinall.

But, omitting to state a demand or notice is bad after verdict. Doug. 684.

Dane, in his Abridgment (vol. 1, p. 395, ch. 20, art. 10, § 1), says,-'Notice is very material. Protests are mere matter of form.' Yet notice may be very loose, and it answers in all cases, if it disclose merely the fact of demand, and a reliance on the person notified for payment. Shed v. Brett, 1 Pick. 401; Miller v. Bank of United States, 11 Wheat. 431; Gilbert v. Dennis, 3 Metc. 495; 2 Johns. Ch. R. 337; 12 Mass. R. 6; 4 Wash. C. C. Rep. 464.

'The notice, however, should inform the party to whom it is addressed, either in express terms or by necessary implication, or, at all events, by reasonable intendment, what the bill or note is, that it has become due, that it has been duly presented to the drawer or maker, and that payment has been refused.' Chitty on Bills (9th Lond. & 10th Amer. edit.), 469.

But it has again and again been held, that the notice need not state a presentment in express terms, and that it will be implied from stating a demand and non-payment, and a looking to the indorser. 9 Peters, 33; 3 Kent's Comm. 108; 10 Mass. R. 1; 4 Mason, 336; 1 Johns. Cas. 107. So, 'Your note has been returned dishonored,' is enough from which to intend all. See various other illustrations, 6 Adolph. & Ellis, 499; 5 Dowl. 771; 2 Chit. R. 364; 2 Mees. & Welsb. 109.

It may be a letter,-merely to that effect,-and need not be a copy of the protest. 1 Chit. (2d Eng. & 1st Amer. edit.), 363, 364, 498, 499; 3 Camp. R. 334; 2 Starkie, 232; Goodwin v. Harley, 4 Adolph. & Ellis, 520, 870; 4 Eq. R. 48. See 8 Mass. R. 386. And it has been adjudged, that the notice need not state, in express terms, that the note was present, or if present was exhibited, if it only contained matter from which, by reasonable intendment, this can be inferred. Chitty on Bills (last edit.) 469; 2 Peters, 254; 9 Peters, 33.

It not being necessary, then, to inform the indorser of the presentment of the note itself, in so many words, there seems to be no use in having the fact stated at length in the protest, if enough appear to render the fact probable.

It would be difficult to find a reason, in the absence of positive law, why the form of the protest should not be dealt by as liberally as that of notice; and if, like the other, it disclose a demand, allow the jury to infer from that, as in the case of notice, that the note was present. Indeed, a protest is not required to be in writing at all except in case of foreign bills, drawn on persons abroad. 1 Chitty on Bills, 643; Rogers v. Stevens, 2 D. & E. 713; 2 Starkie on Ev. 232; 6 Wheat. 572; 8 Wheat. 333; 3 Wend. 173; 2 Peters, 179; 1 Cranch, 205. And then it doubtless originated in a rule merely allowing it to be done to save the expense and trouble of bringing a witness from abroad to prove the fact, rather than making it imperative.

Instead of a written protest being better evidence than a witness of the presentment and demand in case of inland bills or promissory notes, or even foreign bills drawn on persons here, it is inferior evidence to witnesses for proving presentment and demand, and is usually inadmissible, except by special statutes. 1 Chitty on Bills, 405; 3 Pick. 415; 6 Wheat. 572; 5 Johns. R. 375; 4 Wash. C. C. Rep. 148; 4 Camp. R. 129; 2 Howard's U.S. Rep. 71; 8 Wheat. 146.

Some seem to suppose that there is danger in allowing an informal written protest to go to the jury as evidence to be weighed in proving that the note was present. But there can be no more in that than in allowing an informal notice to go to the jury. The jury must be satisfied, in both cases, and should so be instructed, that all has been done which the law in both requires. If there be any defence in either case, that all proper has not been done, it can probably be shown by counter evidence in one as well as the other. Why should it not be? and why is not that an ample security against being improperly charged? For the protest is not a written contract between the parties, or a sealed instrument not open to be contradicted by parol evidence. But it is a mere certificate of a notary, a subordinate officer, admitted for convenience as prim a facie evidence of certain facts, and allowed to that extent in order to save the expense of witnesses and delays, but ought to be always open to be impaired or disproved by the other party in interest, who has never been heard before him, and of course cannot reasonably be concluded for ever by his acts. The notary is not required to swear to them, when they are admissible as evidence, as he would be to a deposition, because of his official obligations and standing. But the character and construction that properly belong to his certificate as evidence seem to be like those of a deposition; and if it states, in so many words, that the note was presented, or states what justifies such an inference, there appears to be no good reason why the contrary may not be proved, if such was the fact, and the indorser be thus protected against statements or inferences not well founded. And the absurdity of the contrary course is still more apparent as to protests, when one made by any respectable merchant, and attested by two witnesses, in the absence of a notary, has the same validity as his. Chitty on Bills, 303; Story on Bills, § 276.

In Nicholls v. Webb, 8 Wheat. 336, counter testimony was held to be admissible against the minutes of a notary offered to prove demand and notice.

So is it admissible, that the notary mistook the place, and did not demand the bill at the place of business for the drawee. Insurance Company v. Shamburgh, 2 Martin's R. (N. S.) 513.

In Vandewall v. Tyrrell, Mood. & Malk. 87, counter evidence was offered, and avoided the protest, because the clerk of the notary, and not the notary himself, as stated in the protest, made the demand. See Chitty on Bills, 495, note.

This point thus being established on both principle and precedent, all the danger or difficulty as to the merits of the case, by admitting a protest like this, is obviated. But it is further urged against it, that presentment is averred in the declaration, and therefore must be proved. This we admit. Chitty on Bills, 643-647. And so is notice averred in the declaration and notice of a presentment, and so that must be proved. 1 Chit. 633; Doug. 654, 680. All we urge here is to let them be proved by similar general statements, from which the similar inferences may be drawn in one case as the other, that the note was present at the time of the demand, unless the contrary is shown,-as it may be, if true.

Again, it is said that the forms of protest generally state, that the bill was present or exhibited. This is true. 1 Chitty, 395, 396 (1st Amer. edit.); Story on Bills of Exchange, § 276, note.

But we are aware of no case deciding that this fact must be stated, in so many words, in the protest itself, though we admit that the jury must be satisfied that the fact existed. Minutes in the book of a messenger deceased have been held to be proof to be submitted to a jury as evidence of due demand and notice. Welsh v. Barrett, 15 Mass. R. 380. Yet there does not appear to have been a presentment stated, eo nomine, or that there was any but inferential evidence that he had the note with him. See, also, North Bank v. Abbott, 13 Pick. 469. And it is not a little remarkable, that the only statute in England (9 and 10 Will. 3) which prescribes the form of a protest, and which is in relation to inland bills of five pounds and upwards, in order to recover damages and interest, the form does not state in so many words that the bill was present or was exhibited, but merely 'at the usual place of abode of the said A. have demanded payment of the bill,' &c. Chitty on Bills, 465 (9th ed.). In such cases, precisely that, and that alone, must be done which is contended for here, namely, leave it to the jury to infer the presence of the bill from its payment being demanded, and any other facts stated, unless the contrary is shown. Look at another analogy. It is necessary that the exhibit of the note and the demand be made in the legal hours of business. Chitty on Bills, 349, 354; Ruben v. Bennet, 2 Taunt. 388; 2 Camp. 537; Parker v. Gordon, 7 East, 385; 1 Maul. & Selw. 20. But, as in respect to the presence of the note, no case holds that this must appear by so many words in the protest. And it is not stated, in the common forms, that the demand was made in the usual hours of business. 1 Chitty on Bills, 396. On the contrary, the jury are allowed or instructed that they may infer, from the statement of the demand and non-payment, that they were made within the proper hours. And if it was not, the other party would doubtless be allowed to disprove it by counter evidence.

How can such a case, then, be distinguished in principle from this?-except that there is much less in the usual form of protest from which to infer that the bill was presented in legal hours, than there is in this protest from which to infer that the bill was present when the demand was made. I am the more inclined, also, to the opinion, that this protest is competent evidence, because, under a special law in Louisiana, passed March 13th, 1827, such protests have been adjudged sufficient. Their law uses the word 'demand' when describing what the protest shall contain, and such a protest is there allowed to go to the jury as evidence from which in infer that the note was present. Nott's Executor v. Beard, 16 Louisiana R. 308.

The bill now in dispute was on its face payable in Louisiana; and hence the principles of commercial law require that the protest be made at the time and in the manner prescribed by that State. Story on Bills of Exchange, § 176; 1 Chitty on Bills, 193, 506; Story's Conflict of Laws, § 360.

But whether the statute of Louisiana prescribing what protest shall be sufficient ought to be considered as affecting any thing beyond the evidence of protest in its own courts, is not very clear on principle. (See cases, Story on Bills, § 172.)

Hence, in forming an opinion, I have placed it mainly on general considerations, though in the construction of a Louisiana statute, which clearly affected the contract, and not the evidence; and where the judgment of its court clearly rested on the statute alone, about which some doubt exists, it ought unquestionably to control us in respect to contracts made or to be fulfilled there, even if a departure from the general principles of commercial law. I wish, also, to avert some serious consequences that I apprehend may result from the decision of the majority of the court in several of the States of the Union.

Bills of exchange drawn in one State on persons in another must be considered, under the previous decisions of this court, as foreign bills. Townsley v. Sumrall, 2 Peters, 179, 586, 688; Lonsdale v. Brown, 4 Wash. C. C. R. 87, 153; 1 Hill, 44; 12 Pick. 283; 15 Wend. 527; 5 Johns. 375; Dickins v. Beal, 10 Peters, 579. Demand of payment, then, cannot be proved in suits upon them out of the State where presented, unless by a written protest, according to the cases before cited.

Whenever the protest, then, in such case, does not state in detail a presentment or presence of the bill, though stating a demand, refusal, and no objection, the protest must, as in this decision, be ruled out as incompetent evidence; and the same decision virtually implies, that no other evidence except the written protest is admissible to show that fact, or indeed any fact which may be omitted by accident or otherwise in the written protest, and that no inference can be admitted to be drawn from the protest as to presentment, when only a demand, refusal, and no objection are stated, as here. These consequences, with others before named, I would avoid, by making the protest competent evidence, and when it showed a demand, refusal, and no objection explicitly, as here, would leave it to the jury, from that and the other circumstances, to say whether they were or were not satisfied that the note was present.

In this way it is easy to reconcile full action of the jury on the facts with that of the court on the law, and this, too, without any innovation or change in the rule as to commercial paper, or any violation of adjudged cases, but rather in conformity to them and to several strong analogies.

This court have in other cases gone still farther, and held it proper even to expand or enlarge the rules of evidence in certain exigencies. In Nicholls v. Webb, 8 Wheat. 332, the principle laid down by Lord Ellenborough, in Pritt v. Fairclough, 3 Camp. R. 305, as to the rules of evidence, was adopted, namely, 'That they must expand according to the exigencies of society.' And in the Bank of Columbia v. Lawrence, 1 Peters, 583, speaking of a rule as to diligence, Thompson, J., says,-'For the sake of general convenience it has been found necessary to enlarge this rule.'

But all I ask here is to go as far as the existing rules of evidence seem to justify, and let reasonable inferences and presumptions be made by the jury from all that is stated in the protest, and thus decide whether the note was not probably present when the demand was made.