BELLEMIRE v. THE BANK OF THE UNITED STATES, 1 Miles 173

The opinion of the Court was delivered by Stroud, J. The declaration in this case is in assumpsit, and states that, the plaintiff, being the holder of a promissory note, dated September 7th, 1832, made by Joseph N.

Goodrich in favour of and indorsed by Jacob Coats, for 105 dollars, payable in thirty days after date, deposited it with the defendant for the purpose of having its amount collected, and that it might be proceeded in according to law, and in case of non payment by the maker, that, due notice might be promptly given to the indorser, and avers, that defendant received the note, and undertook to use all due diligence and attention for the purpose of collecting it from the maker and indorser, and in case it should not be paid at maturity by the maker, undertook to give immediate notice to the indorser ; that on the 10th of October 1832, the note became due, and payment having been demanded of the maker without success, the defendant did not give immediate notice of the non payment to the indorser, but wholly neglected so to do, whereby the indorser was discharged, &c., and the amount of the note wholly lost to the plaintiff, who was obliged to pay the costs of an unsuccessful action in this court against the indorser.

The amount of the note, with interest, and the expenses of the suit against the indorser, were accordingly claimed in the present action.

On the trial, the deposit of the note with the defendant for collection was not disputed, and the usual notice to the maker, of this fact, appeared to have been given, but payment not having been made, the note, after bank hours on the day of its maturity, was placed in the hands of a notary public, whose clerk made a demand of payment in proper form on the maker, who did not pay, upon which, the clerk, through mistake, left notice of the non payment at the store of a son of the indorser’s, but gave no notice to the indorser himself.

In an action brought a short time afterwards against the indorser by the plaintiff on this note, a verdict was rendered for the indorser for want of notice of the maker’s default.

The judge who presided at the trial was of opinion, and so instructed the jury, that the undertaking on the part of the bank to collect this note was gratuitous, and that the bank complied with its duty in delivering the note to the notary in proper time to make demand on the maker, and, in case of non payment by him, to give notice to the indorser; and that any neglect in not giving this notice was chargeable to the notary only, for which tire bank was not liable. The jury, however, rendered a verdict for the plaintiff for his entire demand.

As the verdict was in direct opposition to the charge of the court, on a'point of law, it would have been our duty, even though we supposed the charge to be incorrect, to grant a new trial, in order that our opinion might be reviewed by the supreme court. From this necessity, however, we have beet» relieved by an agreement of the parties, which secures the benefit of a review without a new trial, whether we concur, or dissent from the charge. Our attention is to be directed to the one point, whether the bank is responsible for the default of the notary, by which the indorser has been released.

And we think it right to assume, differing in this respect from the charge to the jury, that the undertaking to collect this note was not gratuitous, but was founded on a sufficient consideration. Smedes v. The Utica Bank, 20 Johns. Rep. 380 ; 3 Cow. R. 662; Bank of Utica v. M’Kinster, 11 Wend. 473. It is a part of the business of a bank to collect notes, the obvious inducement of which is the benefit which may be derived from the temporary though uncertain úse of the money obtained in this manner.

On the instant of its reception, such money becomes an ordinary bank deposit, the property of which is in the bank only, and if withheld by it, must be recovered as a debt. In this respect it is distinguished from a special deposit, the custody only of which is committed to the bank, but the property remains in the depositor. And we assume, also, that a protest was not necessary in order to charge the indorser, notice of the maker’s default being sufficient for this purpose. This is a well known rule of commercial law. Union Bank v.

Hyde, 6 Wheat. 573; 7 Wend. 160; 2 Har. & Johns. 399 ; 5 Ibid. 489; 6 Serg. & Rawle 487. But neither of these concessions, on the view which we have taken of the subject, affects essentially the relation between the parties.

The corporate character of the defendant was known to the plaintiff; it was known, therefore, that it could act only by personal agency in the performance of the particular duty which is charged to have been neglected ; and it was known, also, for this is the uniform and universal custom of banking institutions in this city, that the note, if not paid at the bank within banking hours on the proper day, would be placed, as a matter of course, in the hands of a notary for protest.

It was known that a notary was a commissioned officer of the commonwealth ; that as such he was entitled by law to certain fees for the particular services connected with the collection of promissory notes; that these fees would be paid by the bank, and would be exacted in return from the holder of the note.

It was known also, for every one is presumed to have knowledge of public laws, that by act of assembly, the protest of a notary acting by the authority of the commonwealth is, when duly certified under the seal of his office, legal evidence of the facts of demand on the maker, of his refusal to pay, and of notice having been given to the several indorsers, should these facts be comprised in his certificate. This last circumstance is a modification of the common law, convenient, certainly, to the notary, but scarcely less so to the holder of the note in the event of a resort to a suit at law.

It is plain, then, that the bank should be regarded as having undertaken to collect this note in the customary mode, and that the holder of the note must be understood to have consented to this arrangement. Consequently, on default of payment by the maker, it became the duty of the bank to call to its aid the notesy, and entrust to him the performance of whatever was necessary (o secure the responsibility of the indorsers.

Had it deviated from this course and substituted for the notary one of its clerks or any other individual, and loss had ensued from his inattention or mistake, we are strongly inclined to the opinion that this deviation from established usage would constitute conclusive evidence against the bank, and render it responsible to the full extent claimed by the plaintiff. In Smedes v.

The Utica Bank, the court intimated an opinion that the employment of a notary in a case like that at bar, would absolve the bank from liability to the holder of the note, on the ground that “ notaries are officers appointed by the state that, “confidence is placed in them by government,” The force of this reason is not perceived, unless it was obligatory by law to employ notaries io exclusion of all other agents.

Our opinion is founded on independent considerations : that, the laws of our state recognise the right of employing notaries to demand payment of the maker of a promissory note, and to give notice of his default to the indorsers ; that these acts have been decided to be official, (6 S. & M. 487) and within the meaning of the act of assembly, which substitutes a notarial certificate under seal for a personal examination of the notary on oath or affirmation as evidence in the trial of a cause — a provision convenient, if not positively advantageous to the holder of a note ; that banks in this city at least, universally employ notaries to perform the duties in question — compensate them for their trouble, and charge the amount paid to the holder of the note ; that the custom of the banks is presumed to be known to the holder, and therefore the agency — the collection — is undertaken in reference to the custom, which forms a part of the contract between the parties.

If an attorney at law should undertake to collect a debt, he would not, be held liable to his client for a neglect, of the sheriff to execute process duly issued and placed in his hands with proper directions. In this case, the sheriff, it is true, would be the only agent competent in law to perform this particular service.

But would the responsibility of lire attorney be different, if the law had not made it essential to employ the sheriff, but had merely accorded to his official return the validity which now belongs to it — an advantage not dissimilar to that of (he notarial certificate, and it could be shown that, by universal custom, he was entrusted to execute juridical process 1 The analogy in the two cases is rendered more striking by the additional fact, that both the notary and the sheriff give bond with surety for the faithful performance of their respective official duties.

That in the case at bar, as well the surety, as the notary himself, is liable to the plaintiff; provided, the notary (in regard to which we express no opinion, however) is chargeable with neglect of duty. The decisions which have taken place in our own courts, in respect to auctioneers’ bonds, warrant this conclusion. The remarks of Judge Rogers, in the Mechanics Bank v. Earp, 4 Hawk 392, 393, and the case of Vanwart v. Woolley, 10 E. C. L. R. 145, have occasioned no slight suspense in the judgment, to which we have ultimately arrived.

We do not, however, consider the notary in the light of an agent of the bank, selected from its free volition, but on the contrary, necessarily employed in deference to established usage, known alike by both parties, and virtually, therefore, the agent as well of the plaintiff ns of the defendant. In conformity with the agreement of counsel, the verdict is set aside, and a verdict rendered for the defendant, with liberty to the plaintiff to except, &c., as if the jury had found a verdict in compliance with the charge. * Rule accordingly.