Opinion
December Term, 1858.
Where the protest of a notary public, stated that he presented a bill, which purported to be drawn on a firm, to A, one of the members thereof, it was Held to be evidence that A was a member of that firm, and that the presentment was properly made.
ASSUMPSIT, tried before MANLY, J., at the last Fall Term of Iredell Superior Court.
Mitchell, for plaintiff.
Boyden, for defendant.
The action is assumpsit, brought on a bill of exchange, drawn by R. L. Barkley of Trenton, in Tennessee, upon B. Elder, Brothers Co., of New Orleans, for $372,00, in favor of the defendant, and by him endorsed to the plaintiff. It was tried on non-assumpsit; and in order to show due presentment for payment, the plaintiff gave in evidence the protest of a notary public of New Orleans, in which he stated, that on the day the bill came to maturity, in New Orleans, he "presented the bill to, and demanded payment thereof, from W. B. Chrisp, one of the firm, of B. Elder, Brothers Co., of of this city, merchants, on whom it is drawn, who answered me that said bill could not be paid." The counsel for the defendant insisted, that the protest was not evidence of presentment, for payment, to the firm of B. Elder, Brothers Co., not that Chrisp was a member of that firm; but was only evidence of a demand on Chrisp; and prayed the Court so to instruct the jury. But the Court refused to give the instructions prayed for, and directed the jury, that it was sufficient prima facie evidence of a presentment to the drawees, B. Elder, Brothers Co. The plaintiff had a verdict and judgment, and the defendant appealed.
By the universal law-merchant, the protests of a notary public are received as evidence of the presentment of bills of exchange, for acceptance and payment, and the refusal of the drawee, and the reasons given for it. It establishes the facts, stated in it, in respect to each and all of those points, to the full extent the notary could do it, if he were examined as a witness before the jury, and were believed. That, indeed, was not contested at the bar; but it was admitted that the protest would be sufficient, if it had stated that the notary presented the bill to B. Elder, Brothers Co., nomination. It was contended, however, that the notary could not take upon him to say who constituted that firm, as the partners, and, therefore, that the protest was not evidence, that presentment to Chrisp was one, to the house, on which the bill was drawn. It is not doubted that the protest would have been sufficient if it had set forth a presentment to B. Elder, Brothers Co., without going into the further particulars respecting the particular member of the firm. But certainly that does not vitiate it, since presentment to one of the firm, is a presentment to all, and it is just as competent for the notary to say to what member of the firm he applied, as to say that he applied to the whole firm, as the firm is, at last, composed of particular persons, and if he knows the firm, he knows the ostensible members of it. If he had been before the jury, he might have proved that the Chrisp, to whom he presented the bill, constituted the firm, or was one of the firm on which the bill was drawn, consequently, his protest is evidence to the extent his testimony would have been; for, the purpose of receiving it, is for the convenience of commerce, to dispense with witnesses, and make them unnecessary, by receiving the protest, as evidence, in their stead, of presentment and demand, at the proper time and place, and to the proper persons. When, therefore, the protest states, that the bill was presented to Chrisp, and that Chrisp was a member of the firm of B. Elder, Brothers Co., merchants in New Orleans, on whom the bill was drawn, it states a presentment to the firm.
PER CURIAM, Judgment affirmed.