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FENWICK such protest for non-acceptance, or non-payment, in Oc
tober 1800, was not reasonable notice ; whereupon the SEARS's
court were of opinion and directed the jury that if they ADMINRS.
were satisfied from the evidence that the defendant, at the time he endorsed the bill, knew that Taney had no effects in the hands of the drawees, upon which he could draw, still it was necessary for the plaintiffs, in order to support their action against the defendant, upon the firf count in the declaration, to give him reasonable notice of the proteft for non-acceptance or for non-payment, one or the other; but whether under the circumstances of this case, reasonable notice had been given, to the said Fenwick, of the said protest, the court gave no opinion ; being divided in opinion whether the same was matter of law to be determined by the court, or matter of fact to be determined by the jury.
Verdiet for the plaintiff, 439 dollars, and 46 cents, and judgment accordingly, to reverse which the present writ of error was brought by the defendant.
Mafon, for plaintiff in error.
Simms and C. Lee, for defendants.
Mafon, now waved the consideration of the first bill of exceptions, and relied upon the following points.
ift. That the protests ought not to have been admitted to be given in evidence, because, Hanson who made them, although he stiles himself notary public, was not a nota
2d. That the protest for non-payment was not a sufficient protest to charge the indorfer, because it was not made within the days of grace, but on the day after the last day of grace.
3d. That the notice of the non-payment given to the defendant was not given in reasonable time ; and did not come from an indorfee, but from Judah Hays, for whose use this fuit is brought. The court, and not the jury, are to decide what is reasonable notice.
4th. The letters of administration granted in Maryland, FENWICK before the jurisdiction over the district of Columbia vest
SEARS'S ed in the United States, do not authorize the plaintiffs
ADMINRS. to maintain an action, as administrators, within the diftrict, after the transfer of the jurisdiction.
ist. That Hanson was not a notary public, and therefore the proteft void.
A protest by a person having due authority, is the only evidence which can be received of the non-acceptance or non-payment of a foreign bill, to charge the indorser, Kyd, 136. 142. (87. 91.)
The only person who can have such due authority is a notary public. Kyd. 137. (87.)
With regard to inland bills and promiffory notes, the statute of Anne is adopted in Maryland, and the courts of Maryland are governed by the same rules, laws and authorities as the English courts.
By the conftitution of Maryland, g. 48, notaries public are to be appointed by the governor and council. The 55th section declares, “ that any person appointed to any “ office of profit or trust, fhall, before he enters on the ex“ecution thereof,” take the oath therein prescribed, “and « shall also subscribe a declaration of his belief in the « Christian religion."
The act of assembly of Maryland, Feb. 1777, ch. 5, prescribes an oath of office to be taken before the officer enters into the execution of his office.
The act of assembly, Nov. 1779, c. 25, s. 2, afcertains his fees, and the 8th section prescribes the form of another oath to be taken, before entering on the duties of his office, under a penalty of £.150.
If a man assumes a character which he does not poffess, and a seal to which he has no right, his acts are not obligatory. No man can constitute himself a notary public. If not duly appointed and qualified, his protest is not better than the protest of any other person. If
FENWICK Hanson had not taken the oaths, and if he could not act
until he had taken them, then the protest is not by a noSears's
tary; and it was competent to the defendant to give eviADMINRS.
dence to prove that he had not taken the necessary oaths.
2d. The protest for non-payment was made a day too late. The bill was presented for acceptance on the 30th of March. The last day of grace was the ist of June. The protest was on the 2d of June.
The custom as to the days of grace and the mode of computation of time, is stated in Kyd, 9, (6.)
The bill must be presented for payment within the days of grace and protested on the lajt day of grace. Kyd, 136, 142, (87, 97.)
Although the bill be protested for non-acceptance, yet it must be presented for payment at the time it becomes due and regularly protested for non-payment. And although a right of action accrues upon the protest for nonacceptance, yet the holder is held to have discharged the drawer and indorfers, unless he presents it for payment when due, and regularly protests it for non-payment. Kyd, 117, 120, ( 76, 79, &c.) 121, 137, 138, 151, 208.
3d. The defendant had not such notice of the protests for non-acceptance and non-payment, as to render him liable.
The case of Brown v. Barry, 3 Dallas, 365, has no relation to this case. That was a bill drawn in America upon a person in Europe. This is a bill drawn in Europe on a person in America, and is therefore subject to the laws of the place where drawn and indorsed, as to the liability of the drawer and indorsers. The engagement of Fenwick, the defendant, was made in France, and his liability is to be determined by the laws there. The obligation of the drawer and indorsers is only conditional; the holder must do certain things to entitle him to call upon them. Kyd, 117, (76.) He is bound to give regular notice of non-acceptance to all the preceding parties to whom he means to resort.
As to the protest being for want of funds in the hands FENWICK of the drawees, it goes only to discharge the holder from
Sears's his obligation to give notice to the drawer, but does not
ADMINRS. supersede the necessity of notice to the indorfer. Kyd, 129, 131, (82, 83.) There is reason for this distinction. A drawer may have a good reason for drawing, although he has no effects in the hands of the drawce, but yet no injury can result to him by want of notice. But the indorser may
know that the drawer has been in the habit of drawing; but may not know the exact ftate of the funds upon which he drew.* The endorser endorses on the credit of the drawer; and notice is necessary to enable him to take measures to secure himself from the drawer.
As to the time of notice—the non-acceptance was on the 30th of March, 1798, and on that day the holder's obligation to give notice, accrued, but he did not give it until January or February, 1801. The act of congress did not stop the intercourfe between this country and France, until ist July, 1798. There is no evidence that any attempt was made during this time to send notice. The bill, in seven months, found its way from France to Georgetown, and what prevented its getting back again in seven months more? The evidence stated in the bill of exceptions shews that there was always a circuitous route by which letters and papers might have got to France. There is also evidence that the drawer was able to pay for some time after the drawing the bill, and that he afterwards left France. Notice must be given by the indorsee himself, Kyd, 126, (79, 80.) The only notice which was given in this case, was by Judah Hays, who is not a party on the bill.
The court, and not the jury, ought to have decided the question of reasonable notice, or due diligence. It is a question of law. Kyd 126, 127, (79, 80.) Notice must be given by the first post. The courts in Maryland have always so decided. If the court have not decided the question of due diligence they have erred. They have also erred in the opinion which they did give. They admit that reasonable notice is necessary to enable the plaintiffs to recover upon the bill on the first count, but that, in case the defendant below knew that the drawer had no
See Evans on bills, 62 and 67, Amer. edition.
FENWICK funds in the hands of the drawees, it is not necessary to
prove such notice in order to enable the plaintiffs to re. Sears's
cover on the count for money had and received. It is not ADMINRS. known on what grounds the court below could take such
a distinction. There was certainly nothing in the evidence which could support such an opinion. If the holder had been guilty of such negligence as to discharge the indorfer from his liability upon the bill, he was not entitled to recover upon either count. It was an objection which went to the whole merits of the case ; and it is not like the case where a security or instrument may be vacated, but the debt still remain.
4th. The letters of administration granted in Maryland did not authorize the plaintiffs to administer aflets in the district of Columbia.
The laws of Maryland, which were adopted by congress for this district, do not authorize an administration of affets under letters of administration granted in another ftate. And such has been the uniform course of decisions in the courts of Maryland ; because, by the testamentary laws of Maryland, the administrator is to give bond, and render an account of his administration, and the assets are to be distributed in the manner prescribed by law.
Although this is the law of Maryland, and the laws of Maryland have been adopted in this district by congress; yet they do not operate as laws of Maryland, but as laws of the United States. And although the law is the same, yet the jurisdiction is different. This district, and the state of Maryland, are to each other as separate states.
Simms, for defendants in error.
ist. As to the objection that the notary had not taken the necessary oaths.
It is believed that no case can be produced to support this exception. It would be extremely inconvenient if the acts of a commissioned ministerial officer, should be confidered as invalid, because he had neglected to take an oath prescribed by law.*
Note. See the cale of Tlurjian a Slatford in the exchequer, i Lute ryche, Rep 377, 8vo editio, 1618, where it was held that the town