DEMELMAN v. BRAZIER

Bills and Notes. Evidence, Presumptions and burden of proof, Proof of foreign laws.

There is no presumption that the laws of New York contain statutory provisions similar to those of R.L.c. 73, § 103, in regard to days of grace for negotiable instruments, and, in the absence of evidence on the subject, the law of New York will be presumed to be the same as the common law of this Commonwealth before the enactment of St. 1896, c. 496.

Under R.L.c. 175, § 77, providing that "the existence, tenor or effect of all foreign laws may be proved as facts by parol evidence," the plaintiff in an action against the indorser of a promissory note which is governed by the law of New York may prove by his own answers on cross-examination, received without objection, that the note sued upon was presentable and payable on the day of its protest, which was without allowance for days of grace, although otherwise there is no evidence that days of grace had been abolished by statute in New York.

The ruling ordering a verdict for the defendants was correct. The notes in question were dated March 29, 1905, payable in four months. The twenty-ninth day of July, 1905, was a Saturday. With the customary three days of grace allowed everywhere by common law, the notes became due on Tuesday, August 1, and any demand made before that date, or protest, or notice to indorsers, was of no effect. Mechanics Bank v. Merchants Bank, 6 Met. 13, 23, 24.

No evidence having been produced as to the law of New York State the presumption was that the common law prevailed there, and that August 1 was the date for presentment, demand and the sending of notices. And, this being so, the presentment and demand of July 31, which appeared in the evidence, was an idle ceremony and conferred no rights on the holder of the notes as against the indorsers. Nor was the matter altered for the better by the sending of notices, which were based on the presentment, demand and protest of July 31.

The plaintiff now contends that sufficient testimony as to the laws of the State of New York was introduced when he testified that the notes became due on July 31. No attempt was made to qualify the plaintiff as an expert on New York law, he was not a resident of New York, nor was he a member of the bar. The answers relied on occurred on cross-examination, and it is submitted they fairly cannot be held to furnish competent and sufficient evidence as to the statutory law of another State. The usual practice is for the statutes themselves to be introduced in evidence by means of copies duly authenticated. R.L.c. 175, § 75.

It is quite apparent that neither the judge nor the parties at the time these questions were asked on the plaintiff's cross-examination supposed that evidence was being put in as to the statute law of New York State. To permit the casual answer of the plaintiff on cross-examination that the notes became due on July 31 to take the place of other proof is to say that the plaintiff's statements are sufficient to prove not only the terms of a written statute but also the construction of it. But the construction of a foreign statute is a matter of law. Ufford v. Spaulding, 156 Mass. 65, 66, and cases cited.

C.F. Eldredge, for the defendant Robinson. Under the common law presumed to exist throughout the United States, notes of this character were entitled to days of grace, and it is only by the statutes of our State that days of grace were abolished. St. 1896, c. 228. It also is only by a statute of our State that notes falling due on Saturday are payable and presentable on the Monday following. These are exceptions to the common law, and are made by express statutes of Massachusetts. If there is any such law in New York it must be by reason of a similar statute, and if the plaintiff wished to prove any such law, it was incumbent upon him to produce the statute. No proof of any statute having been offered by the plaintiff, the judge was right in ruling that the common law of New York is presumed to be the same as that of this Commonwealth. There is no presumption that the statute law of New York is the same as in this State. Cherry v. Sprague, 187 Mass. 113, 117.

By R.L.c. 175, §§ 75-77, the existence of all foreign laws must be proved as facts, and the court in its discretion in case of a statute may reject any evidence unless accompanied by a copy of the statutes. The judge, in this case, exercised his discretion by not accepting anything but the statutes, which were not offered, and this is shown by his direction of the verdict for the defendants.