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Tevis v. Randall

Tevis v. Randall, 6 Cal. 632 (1856)
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Court
California Supreme Court · State Highest Courts
Decided
July 1, 1856
Judges
Heydenfeldt
Citations
6 Cal. 632
Cited by 7
Syllabus
An. official bond made to " The People of the State of California," is sufficient, though the statute required it to be made to " The State of California." All that is requisite is that there should be a certain obligee, and either of the above names is descriptive of the same sovereignty, and may be indifferently used, as they are in various statutes. A condition in a notary's bond that he shall well and truly discharge the duties of his office according to law, is the only proper condition to be inserted in his bond. Where the law requires a joint and several bond, and the officer filed a bond which was in form joint and not joint and several; Held that he and his sureties cannot complain that their obligation is less burdensome than the law required. The absence of the statutory requirements does not invalidate the bond. Under our statute, promissory notes are protestable securities, and their protest must foe attended with all the incidents of a foreign bill of exchange. It is the duty of a notary public to give notice of protest to the endorsers of a promissory note protested by him. He is allowed by law a fee for so doing, and the recital of "notice given” in the protest, is made evidence of the fact.
Summary
Appeal from the Superior Court of the City of San Francisco. This was an action against the defendant Randall, a notary public, and his sureties on his official bond, for damages for neglect of an official duty. The case was tried before the Court, a jury being waived, and the finding of the Court below establishes the following facts : The plaintiff was the holder and owner of a promissory note by endorsement. On the day of its maturity the plaintiff gave the note to the defendant, Randall, for protest. Randall duly protested the note, but failed to give proper notice of protest to the endorsers; by reason whereof the plaintiff had failed in his action against them as such endorsers; they were solvent and able to pay the note, while the makers were insolvent; and the execution against the makers had been returned “nulla bona.” The official bond of Randall, on which this action is brought, is made to “The People of the State of California,” and is conditioned “that he shall well and truly discharge the duties of the office of notary public, according to law.” T&e Court below also finds that it is the custom of San Francisco, where the cause of action accrued, for notaries to give to endorsers of promissory notes notice of protest, and that the holders look to them for payment, and that the plaintiff paid Randall the fees allowed by law for so doing. The Court below gave judgment for plaintiff. Defendants appealed.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Heydenfeldt

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Mr. Justice Heydenfeldt delivered the opinion of the Court.

Mr. Chief Justice Murray and Mr. Justice Terry concurred.

1. The first assignment of error is that the bond is payable to “ The People of the State of California,” whereas it is insisted the Act requires it to be made payable to “ The State of California.” All that is requisite to constitute a good bond on this point, is that it should have a certain obligee, so there be no mistake as to the one to whom the service or duty is owing. Either of the names is descriptive of the same sovereignty, and may be indifferently used, as they are in various statutes.

2. Another objection is as to the form of the condition which requires the notary faithfully to perform the duties of his office.

The Act concerning notaries prescribes no condition for the bond, but it declares he shall be liable on his bond for any misconduct or neglect of duty. It follows that the only condition that could be inserted in the bond is the faithful performance of duty.

3. It is objected that the bond is in form joint, and not joint and several, as the law provides it shall be. But this matter of form was designed more fully to protect the State or those claiming under, and was an additional burden on the obligees, of the lack of which it does not seem right that the obligors should complain. But the 11th section of the Act concerning the bonds of officers, provides against the invalidity of the bond, even where it does not contain the substantial matter required by law. And the right to recover upon such bonds is not limited to any particular class of cases, but is co-extensive with the right to recover upon a regular statutory bond.

4. It is urged that the giving notice is not a notarial duty, and therefore, the failure of the defendant Randall to do so, is no breach of the condition of the bond.

At common law, promissory notes were not protestable securities; they are made so by our Act, and as a consequence, the protest of them must be attended with all the incidents belonging to foreign bills of exchange.

*636 The recital of “ notice given ” in the protest, is made evidence of the fact of notice; the notary is provided with a fee bill for giving- notice; in the face of these enactments it would be difficult to maintain that giving notice was not one of the official duties of the notary.

Judgment affirmed.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

Cited by 7 cases

View all citing references →
1862–1863: 11870–1871: 11880–1881: 11902–1903: 11904–1905: 11932–1933: 11964–1965: 118622026peak 1862 · 1

Relies on it most ⓘ

  1. People ex rel. Department of Public Works v. Glen Arms Estate, Inc.230 Cal. App. 2d 841 (1964)
  2. County of Bay ex rel. Houghtaling v. Brock6 N.W. 101 (Mich. 1880) · Dissent
  3. Buhrer v. Baldwin100 N.W. 468 (Mich. 1904)
  4. Consolidated Indemnity Ins. Co. v. Texas Co.140 So. 566 (Ala. 1932)
  5. People v. Love19 Cal. 676 (1862)
  6. Williams v. Parks56 L.R.A. 759 (Neb. 1902)

Most recent

  1. People ex rel. Department of Public Works v. Glen Arms Estate, Inc.230 Cal. App. 2d 841 (1964)
  2. Consolidated Indemnity Ins. Co. v. Texas Co.140 So. 566 (Ala. 1932)
  3. Buhrer v. Baldwin100 N.W. 468 (Mich. 1904)
  4. Williams v. Parks56 L.R.A. 759 (Neb. 1902)
  5. County of Bay ex rel. Houghtaling v. Brock6 N.W. 101 (Mich. 1880) · Dissent
  6. People v. Myers1 Idaho 355 (1871)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

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