Bank of Utica v. Magher

Spencer, Ch. J.

delivered the opinion of the Court. The question arising on the record, is, whether the bank of Uti-ca is liable to be sued, since the act of the 10th oí April, 1815, on a note of that bank, countersigned by O. Seymour, the cashier of the office of discount and deposit in the village of Canandaigua, unless it be averred and proved that payment has been demanded at such office of discount and deposit, before the commencement of the suit ?

Theactofthe 10th of April, 1816, (sess. 38. ch. 144.) provides, that the bank of Utica may establish an office of discount and deposit at Canandaigua, under such rules and regulations as they shall prescribe, not contrary to the provisions of the act of incorporation ; and that no notes of the bank of Utica shall be issued at the branch bank, excepting such as shall be countersigned by the cashier; and the same shall then be considered as payable on demand, at the office of.the said branch.

The object of the act was to transfer a part of the capital of the bank of Utica, to the office of discount and deposit at Canandaigua, for banking operations there. The ability of the bank of Utica to redeem the notes issued by it, and es*345pecially as to such as were issued at the branch, was impaired, in proportion to the capital furnished to the branch. It appears to me to have been manifestly the intention of the legislature, that notes countersigned by the cashier of the branch bank, and issued from it, should be demandable, in the first instance, at the branch. They are then to he considered as payable on demand at the office of the said branch. Thai enactment, ex vi termini, excludes the idea, that with respect to bills thus countersigned and issued, they shall be payable, also, on demand, at the Utica bank. Considering the object and provisions of the act, we have no hesitation in saying, that payment of such bills must first be demanded at the branch. Any other construction would defeat the obvious intention of the legislature, and the declared purposes of the act. There can be no doubt that, if payment be refused, upon the presentment of a note countersigned and issued as prescribed by the branch, but that the Utica bank would be liable ; but until such demand be made, there is no default. We consider the act as imposing it, as a pre-requisite duty, on the holder of such a bill, to make a demand at the branch, before the Utica bank can be called upon.

It has been objected, that the note given in evidence was not countersigned, within the meaning of the act; Seymour not having added to his signature the title of his office. The act prescribes no form of countersigning the notes issued by the branch. It requires only that the notes issued by the branch should be countersigned by the cashier ; and it is in proof that O. Seymour was the cashier. He has not added to his signature his official character; and we do not think this necessary. The act of 1815 is. a public statute; for being an extension of the powers of the bsnk of Utica, and the original act being a public act, the enlarging act must necessarily be a public act. When, therefore, it is considered, that every person must be deemed conusant of the law of the land, and of the statute vesting the bank of Utica with the power of establishing a branch, and requiring the notes issued by it to be countersigned; and when it is seen on the. bill itself, that it is countersigned, there could exist no doubt on the mind of any one, that the bill in question had *346been issued under the authority of the'act of 1815. Butin jjje present case, the plaintiff below was expressly informed» before he brought his suit, that this note ought to be pre-seated at the branch. Independently of these considerations, it was not necessary to the validity of the act of countersigning, that Seymour should have added to his name his official character of cashier. This point was considered by the Supreme Court of the United States, in the case of the Mechanics' Bank v. the Bank of Columbia, (5 Wheaton, 334.) The check, in that case, wanted the official signature of the cashier, yet it was held, that it was an official, and not a private act, and that it was not true that the acts of agents derived their validity from professing, on the face of them, to have been done in the exercise of their agency. In that case, the court were of opinion, that the marks of an official character not only existed on the face of the check, but predominated, and that evidence to fix its true character became indispensable. In the present case, marks that Seymour countersigned this note, as cashier, greatly predominate. Who ever heard of a bank bill being thus countersigned by a private individual, and especially when the word “ countersigned” is engraved on the bill? But when we consider this countersigning in connection with the act of 1815, there cannot remain a doubt, that it was an official act and a compliance with the statute.

Judgment reversed*