John McLean

Name: Cookendorfer v. Preston — Opinion of the Court
Author: John McLean

Cookendorfer v. Preston — Opinion of the Court

Summary

“Cookendorfer v. Preston — Opinion of the Court”, is a work by John McLean. It explores elements such as notary, usage and the Bank of Washington.

Quotes from Cookendorfer v. Preston — Opinion of the Court (John McLean)

John McLean, Cookendorfer v. Preston — Opinion of the Court

“ A notary is a competent witness on the same ground that other agents are admissible. They are always responsible to their principals for gross negligence, and yet, from the necessity of the case, they are competent witnesses to prove what they have done in the name of their principals.
It appears that the witness, who generally acted as notary for the Bank of Washington, had given a bond, with security in the sum of ten thousand dollars, for the faithful performance of his duty as notary public, in the business of the bank committed to him. ”

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Source: Wikisource

John McLean, Cookendorfer v. Preston — Opinion of the Court

“ But it was also proved, as appears from the record, that the usage was changed in 1818 by all the banks of Washington and Georgetown, 'so as to conform to the general commercial usage of demanding payment on the last day of grace.' This referred to notes or bills sent to the banks for collection, and of course embraces all notes not negotiated in bank.
Where a usage is sanctioned by judicial decisions, it becomes the law of the place, and no further proof is necessary to establish it; and it is said, that no evidence is admissible to controvert the fact, as laid down by the court. ”

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Source: Wikisource

John McLean, Cookendorfer v. Preston — Opinion of the Court

“ A notary is not an officer of the law to demand payment of notes, out is merely an agent of the bank. It has been said, that the bank would not be responsible for an error of the notary, and the case in 3 Cowen cited to sustain it. But in that case the bank was held responsible.
The bank is the agent of the deposition, and the notary is the agent of the bank. In an action by the holder against the indorser, the competency of the notary cannot be affected. ”

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Source: Wikisource

John McLean, Cookendorfer v. Preston — Opinion of the Court

“ The competency of a notary as a witness is discussed in 2 Bailey's S.C.. Rep. 183.
An agent is generally a competent witness as to matters within his agency. 1 Bingham, 368; 6 Lea. R. 29; 1 N. H. Rep. 192; 5 Martin, N. S., 310. See also 15 Wend. 314.
2. The notary not only proved his own acts, but the general usage and custom of allowing different days of grace upon notes discounted by a bank and those merely deposited for collection. It is admitted, that if courts have, by their decisions, settled and established what the usage is, it becomes as binding as statute law. ”

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Source: Wikisource

John McLean, Cookendorfer v. Preston — Opinion of the Court

“ That the court erred in refusing the instruction asked for by the defendant's counsel.
3. That the declaration is radically and essentially defective.
1. It may be said, that the objection to the evidence of the notary public goes to his credibility rather than to his competency. But inasmuch as the bank would be absolved from responsibility if the notary committed an error, and all the liability to the party injured by the fault would devolve upon the notary, it clearly became his interest to exonerate himself from it by proving that he committed no fault. His interest was strong and direct. ”

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Source: Wikisource

John McLean, Cookendorfer v. Preston — Opinion of the Court

“ And the said counsel for the defendant further objected to the admissibility and competency of the said testimony upon the subject of the practice and usage spoken of by the witness, but the court overruled the objection, and suffered the said testimony to go to the jury ”

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Source: Wikisource

John McLean, Cookendorfer v. Preston — Opinion of the Court

“ Upon the whole, we affirm the judgment of the Circuit Court, with costs.
Notes
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105) . ”

John McLean

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