Ocean National Bank v. Williams

The presentment of a draft for payment by a notary himself cannot be proved by his certificate that the draft was duly presented and evidence of a presentment by his deputy. A notary cannot present by deputy a foreign bill of exchange for payment, in the absence of a statute or local usage to the contrary; and such usage is not proved by evidence of the general practice in case of bills, unless it distinctly appears that the practice includes foreign bills.

Contract on a draft drawn on J. H. Lyon & Brothers, a firm doing business in the city of New York, by the defendant, payable to his order, and by him indorsed to the plaintiffs. J. H. Lyon & Brothers accepted the draft payable at the Grocers Bank in said city. At the trial in the superior court, before Reed, J., there was evidence tending to show that William R. De Wolf, a clerk of John Hopper, a notary public, made presentment and a demand for payment of the draft at the Grocers’ Bank, on the day on which it became due. De Wolf testified that he knew of no other presentment or demand for payment, and none other was shown. He also testified “ that it was the custom in the city of New York for the clerks of notaries to present and demand payment of drafts, and for the notary to protest upon such presentment and demand, if payment was refused; and that in this case he filled the notice of protest and mailed it, the signature of the notary thereto being printed upon the blank notice.” This notice, which was introduced in evidence, was as follows : “ United States of America, State of New York, ss. I, John. Hopper, notary public, duly commissioned and affirmed, dwelling in the city of New York, do hereby certify that on the 12th day of January, in the year of our Lord one thousand eight hundred and sixty-one, at the request of the Ocean Bank of the city of New York, the original draft hereunto annexed was duly presented at the Grocers’ Bank to the paying teller and demanded payment, which was refused. Whereupon I, the said notary, at the request aforesaid, did protest and by these presents do publicly and solemnly protest as well against the drawers, acceptors and indorsers of the said draft, as against all others whom it doth or may concern, for exchange, reexchange and all costs, damages and interest already incurred and to be hereafter incurred, for want of payment of the same. Thus done and protested in the city of New York, aforesaid, in the presence of John Doe and Richard Roe, witnesses. J. Hopper, In testimonium veritatis. Notary Public, Ocean Bank.” (Seal.) William E. Boies testified “ that he was a practising lawyer in the city of New York; that it was the custom for presentment and demand of payment of drafts to be made by notaries clerks; that he knew of no difference in the custom, whether the bills were inland or foreign; and that his attention had never been called to the custom as to foreign bills particularly.” On this evidence, there being none other bearing upon the question of presentment, demand and protest, the judge ruled that the action could not be maintained, ordered a verdict for the defendant, and reported the case for the determination of this court.