YiEBRUARY, i8c'3.

.of congrefs as making fuch a fine recoverable for the ufc U. STATIS

,of the United States ; and yet, this would be the confe- eV.

.quence of' conflruing it to extend to fines and penalties SiMms.accruing by law, not to government, but to individuals.

If a penalty recoverable by any individual, by affionof debt, was to be confidered as defigned to be embracedby the fecond fedion of the fupplemental af, frill ana"ion of debt in the name of the United States andof the informer, would feem to be the remedy given b.y,the acd.

The principle, reddenda Jingula finguls, would ne ap-plicable ; and it would feem to the court more proper.to fuppofe the qui tam adtion, given in thiscafe, to bethe remedy, than an indilment.

The court therefore is of opinion that there is no errorin the judgment, and that it be affirmed.*

FENWICK v. SEARS'S ADMINISTRATORS. •ENWIcKIV.

'SEARS'S

ADMI NRS.

ERROR ,from.the judgment of the circuit court An adminiftra-'of the diftrida of Columbia, fitting at Wafhington, in tor, havinghad

an adfion on the cafe on a foreign bill of exchange, by lieiraion inthe adminiflrators of the indorfee againft .tle indorfer. Maryland be-

, fore the fepara-

The' cafe, as it appears in the pleadings and bills of trin of the dif-tridt of Colum-

exceptions, was as follows: bia from theoriginal ftates,

Francis Lewis Taney, at Paris, in France, drew the can not,'afterthat feparation,following bill of exchange.: " Paris, 5 th'Auguft, r797t maintain an ac-9 Sixty days after fightof this my fecond of exchange, tionin thatpart".(firft and third not paid) pay to the order of Mr. Jo- of the diftrid

ceded by Ma-, ~. . t.ryland, by vii-

The defendant' s counfel prayed that the affirmance might be t ya by v-• - -tue Of thofecofts. It was fuggefted by fome of the gentlemen of the bar, that the.lettr of ad-queftion of giving coils againfl the United States would be fully argued miniftration "in the cafe of the United States v Hoe, at this term. The court there- hita at;oec ut mutt take

fore pu.poned the fubjed till that argument ihould. be had That caufe out new letterhowever went off upon another ground without any argament on thc within the di .queflion of coils And the court did not give any diredlions refPe&ing tri&.'the cofls in the prefent cafe.

SUPREME COURT U. S.

Frmwycr -feph Fenwick the fum of three hundred and fifty dol.n,. 9 lars, for value received in account, which charge as

OFARS's " advifed by your moft obedient'fervt Fras. Leqo. Taney."AOMINRS. "6 To Nleffis. Ben. Stoddert and John Mafon, George.

V " town, Maryland,"Querc, whetherthe a6ts of a no-tary pubi c who This bill was indorfed by Fenwick to George Sears, ofce ,fishimfelf Baltimore, and on the 3 oth of March, 1798, it was pre..to be tI.ly corn- fented for acceptance, refufed, and protefted in theniff.laned andworn, arc va- ufual form for non-acceptance, bySamuel Hanfon of Sa.

lid, if he be muel, .filing himfelf notary public for the county ofduly appointed, Montgomery in the ftate of Maryland, dwelling inbut not aftuallyfworn in due George-town, in faid county, duly cormiwioned anjf-worn.form.?Whther, he- On the 2d of June, 1798, payment of the bill Was de.tvcen contend- manded of the drawees by the fame notary, and refufed,ing partics, thecertificate of a whereupon, on the fame day he protefted it in the ufualnotary public, form fvr non-payment. Fenwick, the indorfer, was atthat he is "duly the time of indorfing, and had been for ten years before,"commiloned .. -

and fwicn,- a refident of France, but in the year iSoo he came to this.a:n be contra- country, and on the 4 th of April, i go i, the plaintiffsSited ? below brought fuit againif him here upon his indorfement,

VhetheT a pro- The declaration had two counts, one upon the non-accept.tef for nor-fayment of a- ance of the bill, the other for money had and received.

ill of ex chang

rnuft be made The defendant below pleaded,on the !aft dayof grace?Whether the ift. Non-a/un psit.reafortablenefsbf notice be 2d. That the plaintiffs t have not'obtained letters ofmatter of fadt,

or matter of cc adminiftration on all and fingular the goods and chat-iaw? " tels, rights and credits, which were of the faid George,Whether, on a cc I~t the time of his deceafe, to wit, at Wafhington coua-,count for mo-aucy had and re- ty aforefaid, and this he ig ready to verify, whereforeceived, notice :' he prays judgment," &c. to which the plaintiffs replied,of non-accept- " that the faid George Sears, the inteftate, departed thisance, and of " life, in the town of Baltimore, in the county of Bal-non-payment Ibe necAary to timore, in the ftate of Maryland, which was at thattharge an in- " time his place of 'refidence, on the day ofdorfer who it in the year of our Lord i8oo, inteftate ; and after-knew, at' the yeatiMeof in- wards, to wit, on the 8th day of November, in thedorfement, that c, year aforefaid, adminiftration-of all and fingular thethe drawer had c goods and chattels, rights and credits of the faid intf-)I6 right to "t tate, was granted to the faid John 8tricker and Henryr4w

FEBRUARY, 18o3.

"9 Payfon, in due form of law, by William Buchanar, eNwIC&

9- regilter of wilIs for Baltimore cou-ty afoctfaid ; an" exemplification of the btters of adminiitration grantcd ,A" S'-,

to the faid Strickcr and Henry Payfon as aforefaid, duly" authenticated, is now here to the court produced ; and

-t -is they are ready to verify ; wherefore, they pray" judgrn it," &c. Fo this replication there wis a gcac-9 ral demurrer and joinder ; which demurrer was over-" ruled by the court below.*

On the trial of the iffue in fad, five bills of exception5were taken by the defendant's counfel.

The firft ftoited that the defendant obje&ed to the fe-cond bill of the fet of exchange, going in evidence to thejuryi unlcfs the plaintiff firft offered evidence to accountfor the firft and third of exchange, and to fhew that theyor either of them were not paid or paffd in tie courfeof buinefs to fome other perfon who frill holds the fione,but the court over-ruled the objetion, and fuffered the fe-cond bill to be read.

The fecond bill of exceptions ftated that the defend-ant objeded to the admiflion of the two protctfs in evi-deuce, becaufe, as he alleged, Samuel Hanfon of Sa-muel, was not a notary public on the 3 oth of March,1798, or on the 2d of June, 1798, and to prove this thedefendant offered to give evidence to prove that the faidHtanfon, previous to the 3 oth of March, 1798, had beennamed and appointed by the governor of the flate of Ma-ryland, by and with the advice and confent of the council ofMaryland, a notary public, but that he never did takethe oath or oaths prefcribed for a notary public to take,until after the 3 d day of June, 1798, but the court wereof opinion that the evidence fo offered to prove that thefaid IHanfon w#as not a notary public, was not admiffiblefor that purpofe, and refufed to let the faid evidence begiven.; and the protefts were permitted to be read to thejury.

3 d. That the defendant's counfel prayed the court todired the jury that the proteft for no-panztnt is not I uch

* The jurifdiion of th feveral ftates of Virgina and Marylaud overthe territory cedcd by. them to the United Suites, for the fi:2t ot gowv ,:-merit, ceafed ont the firft Noaday of December, i8oo

SUPREME COURT U. S.

FteciCK a proteft as by the law of merchants is required) and wasV. not made within the time by the law and cuftom of

SEARs's merchants required, and therefore that the plaintiffs can-ADMirers. not in this cafe recover of the defendant upon the faid

bill of exchange ; but the court refufed to give fuch in-ftrudion.

4 th. The fourth bill of exceptions flated at greatlength the teftimony of feveral witueffes, tending to fhewnotice of the non-payment given to the defendant in thiscountry fome time in s8oo or i8oi, and that the defend-ant had made fome propofitions for fettling the bill. Thatthe drawees bad no funds of the drawer in their hands.That the drawees held a deed from the drawer of certainlands in Georgia .hnd North-Carolina, and an affignmentof a large demand on the French government, and ofanother large demand againft an individual in France,which they held in truft to pay certain debts due fromthe drawer, and to pay him the furplus if any. Thatthey had permitted thedrawer to go to France and attendto thefe claims and fell the lands, but that it was under-flood between them and the drawer that he fhould bearhis own expenfes, but that they did not inform the de-fendant of that circumflance. That at the time he wentthey thought favourably of the truft and wrote by thedrawer to the defendant, expreffing their opinion of it,and inclofingto the defendant a power of attorney to aftfor them in the bufinefs and to receive any -monies thatmight be recovered under the truft, and informing himthat the drawer would attend and look after the faid con-cerns. That at the time of prefenting the bill they hadnot received any money under the truft, but were in ad-vancc on that account That the bill was endorfed bythe dcfendant to enable the drawer to raife money inFrance, for the purpofe of fupporting his neceffary ex-penfes whilft he was profecuting ,there thofe claims inwhich the ,trawes were interefted as truftees, and thatthe diawef fold them for that purpofe. That the defend-,ant came to this counthy on bufinefs in Otober i8oo,and returned to France in May 1802, and during his flayin this country made Georgetown his place of refidence.

That after this bill was drawn, the drawer received inF rance a fum of between 2000 and 3000 dollars, in the

FEBRUARY, i8o, 263

beginning of the year 1798; that during the years 1798, FE NwicKI 799, and i8oo, French fhips were' permitted to fail di- e.recty from America to France, for the purp6fe of carry- S-A Rs's

ing Frenchmen home ; this happened perhaps twice ayear or oftener. That during thefe years there was acommunication between America and France for letters,&c. through the medium of London and Hamburgh.That. after the fpring of 1798, American veffels were ve-ry often captured by the French armed veffels on the highfeas; and that at the time previous to the year i798,American fhips were embargoed in France.

The defendant then prayed the court to initrudl thejury that upon the whole evidence, as Rated, the plain-tiffs, by their neglet in not giving notice to the defend-ant, the indorfer on the faid bill, that it was proteftedfor nonacceptance and for non-payment, fooner thanthey did, had releafed the defendant from all refponfibi-lity on the fame, and could not recover thereon ; whichdiredion was not given as prayed, the court being di-vided in opinion whether, in this cafe, the queftion ofreafonable notice was a matter of law to be determinedby the court, or a matter of fa- to be determined by thejury. But the court were of opinion, and fo direted thejury, that if theyJhould be of opinion from the evidence, that.the defendant who indatfed the bill drawn by F.. L. Taney isthis fuit, knew, at the time of fiich indoifement, that the faidTaney had no efets in the hands of the drawers, on whichhe could draw, notice of the non-payment, or of the pro-teft therefor, was not ne,:effary .to enable the plaintiffs tQ,recover, in this adion, on the count for money, had and re.Peived.

. The fifth bill of exceptions, after repeating the evi-dence at length, Rtated that the defendant prayed the court-to inflrud the jury, that although they might be of opi.nion that Fenwick, the defendant; knew at the time of hi4indorf~ment that the drawer had no effeds in the handaof the drawees on which he could draw, yet, to fupportan azion, on the bill of exchange, againtft the defendant,it was neceffary for the plaintiffs to give him reafonablk.notice of the proteft of the bill for non-acceptance orPon-payment, oneor the other; and that under the cir-ouWtIAIkue of this eafe; notio to the. faid. Fonwi4, *

SUPREME COURT U. S.

lrNwicK fuch proteft for non-acceptance, or non-payment, in (Oe-I.V tober t8oo, was not reafonable notice ; whereupon the

SEA^s's court were of opinion and dire&ed the jury that if theyA M\iNks. were fatisfied from the ev dence that the defendant, at the

time he endorfed the bill, knew that Taney had no effedsin the hands of the drawe'es, upon .which he could draw,Rill it was neceffary for the plaintiffs, in order to fupporttheir adion againft the defendant, upon thefir/i count inthe declaration, to give him reafonable notice of th,- pro-tefi for non-acceptance or tor non-payment, one or theother ; but whether under the circumitances of this cafe,retfonable notice had been given, to the faid Fenwick, ofthe faid proieft, the court gavw no opinion ; being dividedin opinion whether the fame was m,ttt',r of law to be de-termined by the court, or matter of fad. to be determinedby the jury.

Verdi(t for the plaintiff, 439 dollars, and 46 cents,and judgment accordingly, to reverfe which the prefeni

vrit of error was brought by the defendant.

.Mafon, for plaintiff in error.

Sinms and C. Lee, for defendants.

Mafon, now waved the confideration of the firft bill ofexceptions, and relied upon the following points.

if. That the. protefts ought not to havc been admittedto be given in evidence, becaufe, Hanfon who made them,although he files himfelf notary public, was not a nota-ry public.

2d. That' the proteft for non-paymerit wis not ?ifufficient proteit to charge the indorfer, becaufe it wasnot made within the days of grace, but on the day afterthe lail day of grace.

3 d. That the notice of the non-payment given to thedefendant was not given in reafonable time i and did. notcome from an indorfee, but from Judah Hays, for whofeufe this fuit is brought. rhe court, and not the jury,are to decide what is reafonable notice.

FEBRUARY, 1803. 205

4 th. The letters of adminiftration granted in Maryland, FFNWICne

before thcjurifdi61on over the diftridt of Columbia veft- . .

ed in the United States, do not authorize the plaintiffs SEARs'sto maintain an a~ion, as adminiftrators, within the dif- A IS.tri&, after the transfer of the jurifdidion.

1ff. That Hanfon was not a notary public, and there-fore the proteft void.

A proteft by a perfon having due authority, is the onlyevidence which cau be received of the non-acceptance ornon-payment of a foreign bill, to charge the indorfer.,Kyd, 136 142. (87. 91.)

The only perfon who ea i have, fuch due authority isa notary public. Kyd. 137. (87.)

With regard to inland bills and promiffory notes, theflatute of Anne is adopted in Maryland, and the courts ofMaryland are governed by the fame rules, laws and au-thorities as the Englifh courts.

By the contitution of Maryland, §. 48, notaries publicare to be appointed by the governor and council. The5 5 th fedion declares, " that any perfon appointed to anyCC office of profit or truft, fhall, before be enters on the ex-

ecution thereof," take the oath therein prefcribed, 1' and-fhall alfo fubfcribe a declaration of his belief in the

Chriftian religion."

The ad of affembly of Maryland, Feb. 1777, ch. S,prefcribes an oath of office to be taken before the officer,enters into the execution of his office.

The ad of affembly, Nov. 1779, c. 25, §. 2, afcertains his fees, and the 8th fe6lion prefcribes the form ofanother oath to be taken, before entering on the "dutiesof his office, under a penalty of C. ISo.

If a man affumes a chara&er which he does not pof-fefs, and a feal to which he has no right, his ats are nogobligatoiy. No man can conftitute himfelf a notarypublic. If not duly appointed and qualified, his proteftis not better than the proteft of any other perfon. If

L 2

SUPREME COURT V. S.

FvxEwIcK Hanfon had not taken the oaths, and if he could not a&".IV. until he had taken them, then the proteft is not by a ilo-

SEARS'S tary ;. and ii was competent to the defendant to give evi-'ADMiNIS. dence to prove that he had not taken the neceffary oaths.,

2d. The proteft for non-payment was made a day toolate. The bill was prefented for acceptance on the 3 othof March. The lafl day of grace was the jft of June.,The proteft was oil the 2d of June.

The cultom as to the days of grace and the mode ofcomputation of time, is ftated in Kyd, 9, (6.) .

I The bill muft be prefented for payment %vithin theJays of gracq and proteftedon the laji day of grace. Kyd136, 142, (87, 97-)

Although the bill be protefted for non-acceptance, yetit muf: be prefented for payment at the time it becomesdud and regularly protefted for non-payment.-, Andal-though a right of adion acerues upon the proteft for non-acceptance, yet the holder is held to have difcharged thedrawer and indorfers, unlefs he prefents it for paymentwhen due, and regularly protefts it for non-paymenti-Kyd, 117, 1'20,(76, 79,' &o.) 121, 137, 138, 151, 208,

3 d. The defendant had not fuch notice of the protefts.for non-acceptance and non-payment, as to render him.Lliable.

The cafe of Brown v. Barry, 3 Dalls, 365, has norelation to this cafe. That vgas a bill drawn in Amexicaupon a perfon in Europe. This is a bill drawn in Europeon a perfon in America, and is therefore fubje t to thelaws of the place where drawn and indorfed, as to theliability of the drawer and indorfers, The engagement.of Fenwick, the defendant, was -made in France, andhis liability- is to be determined by the laws ther. theobligation of the drawer and indorfers is Only condi-tional; the holder muff do certain things to entitle himto call upon them. Kyd, 17, (76.). He is bound togive regular notice of non-acceptance to all the precedinZparties to whom he means to refort.

FEBRUARY, i 8oS,

As to the protefi beingfor want of funds in the hands FNwic'K-

of the drawees, it goes only to difcharge the holder from '.

his obligation to give notice to the drawer, but does not SEA P.S'S

fuperfede the neceffity of notice to the indorfer. Kyd, fMTNRI.

-129, 131, (82, 3.) 'T'here is reafon foi this diftindion.A drawer may have a good reafon for drawing, althoughhe has no effeers in the hands of the draweq, but yet noinjury can refult to him by want of notice. But the indorfer may know that the drawer has been in the habiof drawing; but may not know the exa& ftate of thefunds upon which he drew.* The endorfer endorfes onthe credit of the drawer ; and notice is neceffary to enablehim to take meafures to fecure himfelf from the drawer,

.As to thetime of notice-the non-acceptance was onthe 3 oth of March, 1798, and on that day the holder'sobligation to give notice, accrued, but he did not give ituntil January or February, s8oJi. I he a6 of congrefsdid not flop the intercourfe between this couitry andFrance, until Ift July, 1798. There is no e videnQe thatany attempt was made during this time to fend notice.The bill, in feven months, found its way from France toGeorgetown, and what prevented its getting back againin feven months more ? The evidence Lated in the bill ofexceptions fhews that there was always a circaitous routeby which letters and papers might have got to France.There is alfo evidence that thedrawer was able to pay

.for fome time after the drawing the bill, and that he af-terwards left France. Notice muff be given by the in-dorfee himfeilf, Kyd, x26, (79, 8o.) The only noticewhich was given in this cafe, was by Judah Hays, whois not a party on the bill.

The Court, and not the jury, ought to have decided thequeftion of reafonable notice, or due diligence. It is aSueftion of law. Kyd 126, 127, (79, 80.) Notice muftbe given by the firfi poft. The 'courtsin Maryland havealways fo decided. If the court have not decided thequeftion of due diligence they have erred. They havealfo erred in the opinion which they did give. They ad-mit that reafonable notice is necefflary to enable the plain.tiffs to recover upon the bill on the firft count, but that,in cafe the defendant below knew. that the drawer had n

See vanson bills,. 62 and 67, Amer. editiop.

SUPREME COURT U. S.

VENWICK funds in the hands of thie drawees, it is not neceflry toprove fuch notice in order to enable the plaintiffs to re.

SPARs's cover on the count fir money bad and received. It is notA',Vt T S. known on what grounds the court below could take fuch

a diftindlio,. There was certainly nothing in the evi-dence which could fupport fuch an opinion. If the holderhad been guilty of fuch negligence as to difcharge theindorfer from his liability upon the bill, he was not en-titlcd to recover upon either count. It was an obje4ionwhich went to the whole merits of the cafe ; and it isnot like the cafe where a fccurity or inftrument may bevacated, but the debt frill remain.

4 th. The letters of adminifiration granted in Mary-land (lid not authorize the plaintiffs to adminifter affetsin the difiri& of Columbia.

The laws of Maryland, which were adopted by con-grefs for this diftri6t, do not authorize an adminiltrationof affets under letters of adminiftration granted in anotherRate. And fuch has been the uniform courfe of decifionsin the courts of Maryland ; becaufe, by the teftamentarylaws of Maryland, the adminiftrator is to give bond, andrender an' account of his adminiftration ; and the affetsare to be diftributed in the manner prefcribed by law.

Although this is the law of Maryland, and the laws of1laryland have been adopted in this diftri6t by congrefs ;yet they do not operate as laws of Maryland, but as lawsof the United States. And although the law is the fame,yet the jurifdifion is different. This .diftri&, and theRate of Maryland, are to each other as feparate tates.

Simms,for defendants in error.

ift. As to the obje~tion that the notary had not takenthe neceffary oaths.

It is believed that no cafe can be produced to fupportthis exception. It would bi extremely incofivenient if theatts of a comrniffioned minifterial officer, fhould be con-fidered as invalid, becaufe he had negle~ted to take anoath prefcribed by law.*

~ Note. See the care of ¢l.rflrn , Slatford inithz exewhcqer, i Lut-

wciche, Rep 377, 'vo edi;oi, "6 Ai, wherv ii w4 held that the townclerk

FEBRUARY, 18o.

By the a& of Affembly of 1779, c. 25, §. 8, a penalty FENWICis enaded for not taking the oath there mentioned. This I.does not make void the ads of the officer, if he negle&s SIEARs ,to take the' oath required, but only fubje&s him to the ADmu'iN.penalty, for aaing without taking it. From this it maybe inferred that the legiflature confidered his ads as valid.

The court did not err in refufing the evidence offered,becaufe it was an attempt to prove a negative. The oathmight have been taken before any judge, or juftice of thepeace in the ifate of Maryland, or any alderman in thecity of Annapolis. The law does not require fuch oathto be recorded, or depofited in any particular place. A par-ty can niever be called upon tb prove that a notary public,who protefts a bill of exchange, was duly qualified tomake fuch a proteft; confequently the court ought notto admit evidence that he was not, fo as to throw theburden of proof upon the other party. There is no penal-ty prefcribed for not taking the oaths required by the con-ititution of Maryland, and by the aa of 17 79, but it doesnot follow from that circumifance, that the ads of theoflficer, duly appointed and commiffioned, would be voidby his not having taken the oaths, becaufe he might beindi&ed and punifhed for his contempt of the law, and his.negle of duty. Innocent people ought not to fuffer byhis negligence, efpecially as they have no means of know..ing whether he had taken the oaths or not. The publiccommiffion from the proper authority is all that can. beyequired to proted the rights of third perfons.

It is true that in the paffage cited from Kyd 136, (87.)it is faid, that "'the perfon whofe Qffice it is to do thefe'i a&s" (that is make protefts, &c.) " is in common lan-I guage, termed a ptsblic notary," but it is alfo faid inEvans 94, that when there is no public notary in the place;$1he proteft may be made by any other perfon.

2d. As to the time of making the proteft for non-pay-tr~nt.

The time when a proteft ought to be made, dependsznuch on the cuftom of the place. 4 Bac. ob. Guilim's

rlemk of Oxford was entitled to recover his fecs accruing, before he hadtaken the oaths.

270 SUPREME COURT U. S.

Y 2WwtK Ed. 687. The time in Efigland was for a long while ufifet-SV. tied. .In Salk. 132, Hill v. 'Lewis, it was determined that,

SARs'S with refpe6 to foreign bills, the drawee had three daysADNINRS. of grace to pay them in, and that no demand need be made

Still the expiration of the three days, confequently that theproteft need not be made till after the third day of grace.But in the cafe of Tafel v. Lewis, Ld. Ray. 743, it washeld that the time of payment is the laft of the three days,and that the demand ought to be madepn that day. In alate cafe of Leflty, v. Mills, 4 Term, Rep, 173, Ld. IKenyonheld that the acceptor had till the laft moment of the laftday of grace to pay the bill, confequently the proteft couldnot be made till the day after. But Buller held that theacceptor was bound to pay the bill, on demand, on any

rt orf the third day of grace, and that the bill ought toprotefted on that day, and it is believed that fuch is now

the eftablifhed cuftom in England. Kyd, 120, 121,(7,9, 80.)

But the cuftom of merchants in the United States dif.fers in tome refpeas from the cuftom of merchants inEngland. Brown v. Barry, 3 Dal 365, 368. It is be-lieved that, in the United States, the cuftom is to protefton the day after the laft day of grace. Such is the cuftomin the banks -of Alexandria and Columbia, in the cafe ofpromiffory notes ; and no difference is known in that re-fped between promiffory notes and bills of' exchange.'There is no reafon why a difference Thould exift, as thethree days of grace ate allowed in one as well as in theother.

But in this cafe, the bill was protefted for non-accept.ance and the defendant thereupon became liable to theaCtion of the plaintiff. In an aaion brought upon thenon-acceptance, it is not neceffary to aver a demand orproteft for non-payment on the day when the bill becomesdue , and what it is not neceffary to aver, it is not neceffaryto prove ; Lilly's Ent. SS, Dunflar v. Pierce, which was acafe on a demurrer. tq, the declaration; demurrer over-ruled, and judgment atdirmed in the exchequer.

But bad the bill been accepted, then a proteft for non.payment would have been abfolutely neceffary. Evans 66,,Kyd. 140, Doug. 55, Aijord ,. Mayer. Buller Nt, .

FEBRUAKY, 1803.

169. Brightv. Purrier. Kyd, 110, III. 3 Wil. 16, FNtwrlc'6

8EARS'S

3. Under the circumftances of the prefent cafe- the ADMIxRS.

plaintiffs were not bound to give the defendant notice atall ; the jury having found in fubftance, that at the time.tde defendant indorfed the bill, he knew that the drawerhad no effe&s in the hands of the drawees ; and was there-fore guilty of a fraud on the plaintiff's inteftate, in fellinghim the bill. The plaintiffs therefore had a right to re-cover on the count for money had and received.

Befides, the reafon of the rule which difpenfes with no-tice to the drawer, when the drawees have no effeas, ap-plies as firongly to the indorfer who knows that fad, asto the drawer. Notice to fuch a indorfer can be of nobenefit, becaufe he knew, at the time of indorfing, that thebill would not be paid, and therefore muff have taken fe-curity from the drawer, or if he did not, it was his ownfault. By knowing. at the time of indorfing that thedrawees had no funds of the drawer in their hands, hevirtually had notice of the non-acceptance and non-pay-ment. The rule, which requires notice to an indorfer, ismade for his protedion and benefit ; and ought not to beQonverted into the means of enabling him to pradice afraud.

The opinion of the court below, that although noticemight be neceffary in order to fupport an af'ion on the billupon the firft count, yet it was not neceffary to maintaiathe count for money had and received, was certainly cor-re&, and fully warranted by the cafe of Bickerdike v.Bol/man, I Term rep, 408, 409, 410. Inthat cafe Afh-

hurft, juftice, fays ;that notice is not neceffary to thedrawer when he has no effeds'in the hands; of thedrawee; "for it is a fraud in itlf, and if that can be

proved, the notice may be difpenfed with." Kyd t 29.(82.)Evans 59. Every indorfer is; to his indorfee, as thedrawer of a new bill. Kyd .113. (72.) i Salk. 133. Har-ry v. Perrit, 2 Shower 5o. Claxton v. Swift, and inHeflin v;' Adamfon, 2 Burr, 674, Lord Mansfield fays,.A that when a bill of exchange is indorfed, by, the perfon" to whom it. was payable; as between the indorfer andI intorfee, it is a new bill of exchange, ancl the indorfer

SUPREME COURT 11. S.

'Owtci " ftands in theplace of -the drawer." If, therefore, the1V. indorfer, at the time he transfers a bill, :knows that the

SEARS's drawer has no effe~as in the hands of the drawee, he isADmis. as guilty of fraud as the drawer himfelf; and in all cafes

where money is obtained from another by fraug of anykind it may be recovered back in an adion for money hadand received. 2 Bur. x 102. Mofes v. Macferlan. Salk.28. HaJer v. Wallis. And in the cafe before cited of Bick-erdike v. Bollman. i frerm rep. 41o, Buller, juftice, fays,

Betdeis, in the prefent cafe, as the plaintiff's counfel"have truly argued, the queftion is not, whether an ac-" tion could be maintained on the bill itf'If, but whether" the want of notice extingujhes the debt. As to which"t the cafe is this, A. not having any effeds in C.'s hands," draws a bill of exchange for ,C. oo on him, in favour,.of B. for value received. Now if C. does not accept,at and B. does not give notice to A. there is an end of thec bi.l. Then how does the cafe ftand .? A. has I. 1oo of6 B.'s in his hands, without any confideration, which,49 therefore, B. may undoubtedly recover in an.acion for mo-,ney had and received."

The reafoning in that cafe applies exactly to the pre.fent. 'Here the defendant Fenwick, by his indorfement ofthe bill, acknowledges that he has received its amount.He has received of the inteflate 350 dollars, withoutany confideration, and, therefore, even although the re-medy on the bill might have been loft, he ought to recoverthe amount of the confideration on the count for moneyhad and received.

It is true, that in the cafe of Goodall v. Dolley. r 7i'ermrep. 712. it is faid that the fa& of the drawer's having nofunds in the hands of the drawee, would not difchargethe obligation of the holder to give notice to the indcrftr,to whom he meant to refort ; yet it is a lfo exprefsly flatedthat the indozfer was ignorant of all the circumnflances of thecaf,. That opinion, therefore, can not affed the prefentcafe in which the indorfer knew the circumnfances.

As to the queftion whether reafonable notice is matterof law to be determined by the court, or matter o fa&tto be determined by the jury: The praffice in England,until lately, was for the jury to determine, by the cir-

FEBRUARY, 19o3.

cumfances of each particular cafe, what time was rea- FzswtcS

fonably to be allowed either. for making demand or givingnotice. Kyd, 127. (77.) Doug. 5I15,(497.) Rud v. Lang- SFARS'S

flafe. Doug. 681., R, ton v. Afpinall.

In the cafe of Tindall v. Brown, i T mn rep. 167.

Lord Manrfieldfays, that " what is reafonable notice is"partly a queftion of fad, and partly a queftion ot law.

It may depend in fome meafure on fads ; fuch as. the" diftance at which the parties live from each other, the4 courfe of the pofts, &c. But whenever a rule can, be" laid down with refped to this reafonablenefs,'that fhould" be decided by the court, and adhered to by every one"c for the fake of certainty." And, Aflbbur,/, juflice, laidit was " of dangerous confequence to lay it down, as ai general rule, that the jury fhould judge of the reafon#.

blenefs of time. It ought to be fettled asa queftion oflaw. If the jury were to determine this queftion in,

tall cafes, it would be produdive of endlcfs uncer-

• tainty."

It appears to have been the opinion of both thefe judges,that there were certain cafes in which it was proper forthe jury to determine on the reafonablenefs of notice ;but that in cafes where a rule can be laid down, the courtought to decide the queftion. No certain rule caiwbelaid down, except in cafes where the parties live in thefame place, or where there is a conftant and regular communication by poft between them.

In a much later cafe 2. H. Blacy]Ione's rep. 569, it wasdetermined that what 'was reafonable time, muff dependon the particular circumftances, and it muft be always forthe jury to determine whether any laches is to be imputedto the plaintiff.

In the cafe of Mackie v. Davis, 2. W'af!, 231, Car.rington, juftice; fays " whether due dili'gence had been'" ufed bythe affignee to recover againft the obligor would" neceffarily be a matter- in iffue between the parties, and" would, upon all the circumrftnces of the cafe, be de."cided by the jury."

1. Da. 252, if to the fame ei'eOl. A Gafe to the fame

274 SUPREME COURT U. S.

FNWcIcK effe& alfo has been mentioned as having been decidedW,. in the circuit -court of the United States, in Virginia, by

SSARS'S judge Wilfon.AD, I NR s.

vThe inftru&ion of the court below to the jury, thatreafonable notice was neceffary to charge the defendanton the firft count, -was not objeded to by' the plaintiff'scotinfel ; but the court not having inftru(ted them whe-ther' the notice wa's or was not reaforiable, and a generalyerdia for the plaintiffs having been giv6 n, it is to beprefumed that the jury thought the notice was reafon ableunder all the cixcumftances; and they were certainly com-petent to decide that queftion,

The decifions, that notice mufl come only from theindorfee or.the'holder, have been fince over-ruled. E-vansi 57.

3. As to the letters of adminiftration.

An adminiftrator, in the- United States, ought not tobe confidered precifely,in the fame point of view as inEngland.i

In England, he is the fervant or agent of the ordinary,and ats in his place and. fead.

In the United States, he is th reprefcntative of theinteftate ; and all the rights and credits of the inteftateare vefted in him.

Formerly in England, the goods of an inteftate weredifpofed of by the bihop or ordinary to pious ufes. Itwag not-until the ftatute, of 13 th. Ed. i. c. 19, that thebifhop 'or'ordinary was compelled to fatisfy the debts ofthe inteftate as far as the goods, which came to his hands,would extend.

After'this flatute, an a&ion might be brought againft'the ordinary in the fame manner as again.f an executor;but, he was not compellable to grant adminiftration untilthe Ratute of 3 J, Ed. 3 d. c. ii.

- From thls relation between the ordinary and the ad-ininiftraior he poNWer of the latter was neceffarily limited

.1

FEBRUARY, 1803.

by the jurifdi&ion of the former. But the act of congrefs FEzwicxconcerning the diftri& of Columbia puts the queflion out W.of doubt. By that a&, the laws of Maryland arc continu- SrARS'S

ed in force in this, part of the diftrit ; of courfe, all ADr0iNRs.rights acquired under the laws of Maryland remained va-lid. It was not the intention of congrefs to diveft anyrights which had been acquired under thofe laws. If thefeparAtion of the diftri& from Maryland took away thetight which the plaintiffs before poffeffed of taking pof-feflion of the property and colleding the debts of the-in-teftate, in this part of the diftri&, under their letters ofadminiftration granted in Baltimore county, it wouldhave the fame effe& upon letters granted by the orphan'scourts of Montgomery and Prince George'.s counties, be-fore the feparation, to perfonsirefident in the diftri& fothat their ads, done fince the feparation, are unauthorizeA,and they cannot lawfully a& until ne* adminiftration Hasbeen taken out from the orphan's court withir the diftrid.The inconvenience, expenfe and oppreffioi of fuch a con-ftru&ion, are too obvious to admit the fuppofition that itwas within the intention of congrefs.

Thefe letters were taken out from the proper authorityand at the time, vefted a right in the plaintiffs to adminifterthe affets within this part of the diftri.

C. Lee, on the fame fide.

i ft.. As to the letters of adminiftration.

Admitting that letters of adminifiration, granted outof the ftate of Maryland, will not authorize an admini-ftration of affets within the ftate, yet in this cafe the let-ters were granted in Maryland while this diftri& was partof Maryland, before the ift Monday of December i8oo,and did once authorize an adminiftration of the affetahere. A right was completely vefted in the plaintiffs.The laws of Maryland are as fully in operation in thisdiftri& as they were or are in the ftate of Maryland.Congrefs could not mean to diveft rights completely vefted.

2d. As to the fecond bill of exceptions.

It is'admitted that Hanfon was duly appointed notary,but the objedion is that he had not taken the oath. The

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yrvwicz exception is not to the opinion of the court that he was_. not duly qualified to ad; but fimiply that it was not com.

SARS'S petent for the defendant to give the evidence offered toADMINRS. prove that he had' not taken the oaths. rhe intention

"of an oath is only to impofe an additional obligation on-the officer. It is a matter between the officer and thegovernment; and generally a penalty is impofed fornot taking it; but the not taking the oath does notmake the aa void. Suppofe a member of the legiflatureihould not take the oath prefcribed ; this would not vacatea law to which he had given his affent. Such a doarinewould produce infinite inconvenience. No time is limitedfor making the objedion ; and twenty years after an akhas been done, it may be offered to be proved that theofficer did not take the oath ; if the court would do rightin refutfing fuch evidence in that cafe, they were right inrefutfing it in the prefent.

3d. The third billof exceptioh6 is, that the court ad-mitted the proteft. for non-payment to go to the jury,when it was not made iih due time.

The adion being for non-acceptance, and not on theproteft for von-payment ; it was not neceffary to producethat proteft at all. The objetion is that it was notmade on the lafi day of grace, but on the day after.

The cuftom is different in different.countries. Fromthe general pra&ic6 of the. banks, it may be confideredas the general rule in this country to protlft on the dayafter the laft day of grace.

The proteft for non-acceptance is not objeded to; itwas made on the day on which the bill .was prefented.

The court oihly refufed to give 'the ,dire&ion as prayed,

but gave co opinion that the proteft was a good one.

4 th. As to the fourth, bill of exceptions.

This reccord does not ftate the whole evidence in thecaufe. It is true it'is laid that this is all the evidencegiven of notice ; but it does not ftate what other evidencethere might be to excufe the want of notice. This ex.

116

FEBRUARY, i 8og.

ception mray be divided into three points; firit, as to the FE4WIC-Kopinion prayed ; tecond, as to the condud of the court in v.notgiving an opinion as to part of'the prayer, and thirdly, S-rAIts'sas to the opinion which the court did give. ADMIN RS.

The prayer is to inflru&i the jury that it was neceffaryto prove notice ot non-payment as well as of non-accept-ance. The plaintiffs, if any body, had a right to com-plain of the opinion of the court, in as much as it didnot declare notice of non-payment to be unneceffary. Butthey have waved their right to except. The opiniongiven is what is excepted to, and that was given only onthe count for money had and received.

The bill and indorfement are ftated to have been madein France. The law of Prance then is the Lex Loci, bywhich this caufe is to be decided, and by' which the lia-bility of the indorfer is to be afcertained. By that lawno notice is neceffary to the drawer or indorfer, if thereare no effeds of the drawer, or of the indorfer, in thehands of the drawee. Evans 6o, 62.

And what is meant.by funds, is not fecurities lodgedfor raifing money, upon which the money has not beeivraifed; but is money in account. 2 tfUp, rep. 515. Evant62.

As to the ground of fraud, the court left it to the juryto decide whether the defendant knew that the drawer hadno funds in the hands of the drawees. If he did knowit, iA it not as much a fraud as in the cafe of a drawerdrawing without funds? It is in fad an accumulatedfraud. If, according to juftice Afhhurft, one is a fraud,the other muft be a greater fraud.

,4.A to due diligence, the exception is not. that no noticewas given, but that it was not given in due time. Nodoubt but that by the laws in England, due notice is ne-ceffary as a generalrule. But to this there are exceptions,

There is an American law on this fubje&, which is,that in fome cafes the jury, and not the court, is to oc-cide what is laches. When a particular cafd arifes, anda variety of circumftances are given in evidence in ex-

-'118 SUPREME COURT U. S.

FENwicK cufe for not giving notice fooner, there, by the Americat• ,. praffice, the jury are to decide. This appears by the de-

SEARS'S cifions in Pennfylvania down to the year 1795. 1 Dallas,.ADMT'NS. Robertfon v. Vogle. 2 Dal. r 58. Bank of N. America v.

' .~' M'Knight. 2 Dad. i92. 233. I Call's rep. 123. M'Wi.h a m :s v . S m ith . - ..

In this country the line is more diftinfly- drawn be-tween court and jury than it is in England. By the 9 tk,article of the amendments to the conifitution, a matteronce tried by a jury fhall not be otherwife re-examinedthan by a jury according to the rules of the commonlaw. If the court now make a rule as to what is due di-ligence in this cafe, they will without a jury try a faawhich has once been decided by -the jury in the courtbelow.

If the queftion involve matter of faa 'with the law,the jury mqdi decide the fads ; and it is no error in thecourt ito f'uffcr them to decide the law alfo at the fametime.-

. When a rule can be laid down, then the court isto ftatethe rule. But where that can not be done then it may beleft to the jury.. This is all that lord Mansfield fays inin the cafe of Vindall v. Brown.

5 th i The fifth is an exception to the opinion whichthe court gave, and not to thelcondu& of the court innot giving an opinion. rhe opinion given was againftthe plaintiffs below, and they alone had a right to exceptto it.

There was a decifion of chief juftice Jay, given uponthe circuit, fimilar to that given by judge Wilfon, thatthe jury and not the court were to judge of the validityof Cxcufes for giving notice.

The judgment ought not to be reverfed becautfe thecourt below did give an improper. inftrukion'to the jury.

It is hoped that the court will decide the queftion ofiotice as it is of great importance that a general ruleThould be rftablified and underRood.

FEBRUARY, 1803. 279

qMfon in reply. FEIw ICKIV.

ift. As to the letters teftamentary. SEARS'SADMINRt .

Antecedent to the revolution the teftamentary affairs "Y -in the fRate of Maryland were under the fuperintendanceof a commiffary general, who had a deputy in each county.If there were Lona notabilia in feveral counties, the ad-miniftration was granted by the commiffary general.But if the goods of the inteftate were all in one countyit might be granted by the deputy commiffarr of thatcounty. By the new fyftem of teftamentary laws, 1798ch. 1I. § 3. the affets in Maryland connot be admini-flered but by letters of adminiftration granted in Ma-ryland.

In the diftri6 of Columbia, if a man now die ipteftate,the adminiflration muff be granted in the diffri&-

The laws of Maryland do not operate in the diftri& aslaws of Maryland, but as laws of the United StatesTheir obligatory force is not derived from the Rate otMaryland, but from the United States.

"Does the faCt that the letters were granted before thefeparation of the diftri& from. Maryland, make any dif-ference? If any right had vefted, what was it ? Was ita right to fue Fenwick who was ther in France, and whocame to the diftriL after its feparation.

But no right at all had vefted in the plaintiffs. If thefeparati6n had not taken -place, and Fenwiqk had come,they might have fued; but as it had taken place beforehe came, they can not.

By the laws of this part of the diftri&, the adminiftra.tor muff give bond duly to adminifter the eftate, and topay the debts pari palu. He muft advertife in a certainmanner, &c. The only evil refulting from this conftruc-tion of. the law is, that plaintiffs muff take out letters ofadminiftration here.

2d. As to the fecond bill of exceptions. The qucftion'is, whether Hanfon was a notary before.he took the oath

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FitNwic preferibed by the law of 1779. rhe conflitution fays,I,. that before he enters upon the execution of the duties of

SARS'S his office he hall take the oath of allegiance. The lawADM T NRS. of 1779 fays, he fhall take the other oath therein pre-

" ' fcribed, and if he ats without having taken it he fhallhe fubjed to a penalty. The conftitution and the laware to be coupled tbgether, and then the taking the oath

rpefcribed by. the'ad of 1779, becomes a pre. requifite tohis capacity to a& as notary.

3 d. The third bill of exceptions is that the proteft fornon~payment was not a proper one to go to the jury. It-was not in itfelf evidence. It is no anfwer to fay that noproteft for non-payment was neceffary; the counfel belowdid not chufe to rifk their caufe without it. If the opi-nion of the. court is erroneous, and if the proteft wasimproperly admitted to go to the jury, the judgment mnuftbe reverfed. It may be a good reafon why the courtThould refufe to let it go to the jury, that it was not ne-ceffary. It is therefore unimportant to decide whetherit was neceffary or not. But that it was neceffary ap-pearsin Kyd, 120, 137, 13Q,'(77, 87. )

As to the cafe of the notary who refufed fix pence fornoting the bill, 4 Term rep. 173. It is the opinion oflord Kenyon only, that the acceptor had till the laft mo-ment of the laft day of grace to pay the bill; and thatwas the cafe of an inland bill, and de ided exprefsly uponthe ftatute of William. But Buller Rates the law to beotherwife on a foreign bill, and that, by the cuftom, thebill is payable at any reafonable time of the laft day ofgrace when demanded. And the law is fo ftated in Kyd,'12I, (78.) The pra6tice in Alexandria may be as Rated,but in Baltimore they proteft on the 3 d day, in bankinghours, There-is a difference between the law refpedinginland and foreign bills; and this difference arifes fromthe ftatute of William, which gives the proteft ot inlandbills and requires it to be made after the expiration ofthe three days, Kyd, t5z, (91.) It is upon this ftatute,which is in force in Maryland, that the banks have adopt-ed the praatice of protefting promiffory notes on the dayafter the expiration of the three days of grace. A pro-miffory note as foon as it is indorfed_ becomes an inlandbill of exchange.

FEBRUARY, 1803. 281

4 th. It is objected to the fourth bill of exceptions that FENwicitit does not contain the whole evidence. But if a bill of ..exceptions ftates evidence, it has been decided by this court SEA RS'S

that it is prefumtd to ifate the whole evidence. 3 Dal. 19, ADM 1NIS,

38, Bingham v. Cabott.

It is faid that the exception is not to the refufal of theprayer, but to the opinion which was given. If the opi-nion prayed was corre&, and the court refufed to give it,or, by being divided, failed togive the inftrudion to thejury as prayed, it is error. The court will difregard theinaccurate form of words, and come at the fuDftance ofthe exception.

As to the want of funds in the hands of the drawees,the court are to prefume that the whole evidence is fiatedin the exception. We deny the principle that fuch fundscan be only money in account. There was reafon forFenwick to believe that the drawees had funds, and heought therefore certainly to have had notice. There isnot the leaft ground for a fufpicion of fraud in Fenwick.

As to the count for money had and received, it is a com-mon law count; but upon that count the plaintiffs cannot recover by means of evidence refulting from thatbill, unlefs they have done every thing to entitle them torecover upon the bill itfelf, by ufing.due diligence, givingdue notice, &c.

It is faid that the ihdorfement wa: made in Frane, andtherefore the law of France is to decide the refponfibilityof the indorfer ; and that by that law notice is not necef-fary to the indorfer, if neither the indorfer nor the draw-er has funds in the hands of the drawee; and Evans iscited as the authority. It is doubted whether Evans iscorrea in that pofition; but whether corre&l or not, itdoes not apply, becaufe the money-was to be paid here,and the contraCt is perfonal. If Fenwick had been fued inFrance it might have applied; but being fued here, thelaw of this country muft decide his cafe.

As to the queftions what is due notice, and whether itbe a matter of fa & or of law, the deciflons cited fromDalIs are no authorities in this cafe. They all-turned

N2

SUPREME COURT IT. S.

iENWCK upon the laws of particular ftates. This court is to beIV. governed by.the law of the place vhere the tranfafion

SA Rs's happened, unle'fs where the laws of the United StatesA ,lts.j apply. The court in this cafe are to decide by the laws

as they exift in Maryland ; and there the laws of Englandrefpedfing bills of exchange and promiffory notes have al-

,ways been the riles of decifion. We are not in Mary-land to be governed by whimfical opinions dravn froffteither Pennfylvania or Virginia.. Virginia has i6t benremarkable for her progrefs in commerce ; and were I to'form a fy'fem of commercial law, I flbould certainly'n~tdraw it from *the fantaftical opinions adopted in either dfthofe ftates.

In Englhnd, what is due notice has been and is fettledand determined to be matter of law to be decided by thecourt

On the 2'gth of February, The Court gave the follo*-ing judgment.

"9 It is decre ed by the court that the defendants Stricker"c and Payfon, not havin'g obtained letters of adminifration

( in the dflriRl f Colimbia, were not competent to main-If tain this afion ; and that the circuit court of the- United States in and for the faid di{ltri& erred in over-

ruling the demurrer. It is therefore cotifidered by the" court, that the judgment of the faid circuit court, on" the faid demurrer, be, and the fame is hereby reverfed," and that judgment thereon be rendered for the defend-" ant in the original alion."'*

THOMPSON v. JAMESON.

THomPSONIv. ERROR from the circuit court of the diftri&"ofJAMESoN. Columbia, fitting in Alexandria.

An adion of The reporter was not in court when this judgment was entered, butdebt for £ 86o he has underftoad that the court did not affign the reafons' upon which.z z z, founded their opinion was grounded; and gave no opinion upon the '4thir poWiWson a dccree in Ste Evan. ontills, 67,68, 6,, 70, W 71, as to otic.