The Union Bank vs. Hyde.

collection in the bank, were, after his decease, admissible evidence to establish such demands and notices. And the learned Chief Justice of the Court, on that occasion, went into an examination of the grounds of the doctrine, and put the very case of a notarial demand and protest of notes, which had been suggested at the bar as a more correct course, as not distinguishable in principle, and liable to the same objections as the evidence then before the Court. We are entirely satisfied with that decision, and think it is founded in good sense and public convenience. We think it a safe principle, that memorandums made by a person in the ordinary course of his business, of acts or matters which his duty in such business requires him to do for others, in case of his death, are admissible evidence of the acts and matters so done. It is of course liable to be impugned by other evidence, and to be encountered by any presumptions or facts which diminish its credibility or certainty. A fortiori, we think the acts of a public officer, like a notary public, admissible, although they may not be strictly official, if they are according to the customary business of his office, since he acts as a sworn officer, and is clothed with public authority and confidence.

"It is therefore the opinion of the Court, that the evidence excepted to in this case was rightly admitted."

Before the decision in Buckner vs. Findley and Van Lear, in which it was determined that bills of exchange drawn between the several States of the Union were to be considered as foreign, the question came up for discussion in Townley vs. Sumrall, 2 Peters, 170, whether the protest of such a bill was to be received as evidence of its dishonor; and the opinion of Mr. Justice Story, which we extract below, contains an instructive exposition of the nature of this instrument, and the grounds of its reception in courts of law.

"The first question that arises is upon the admissibility of the protest of the notary public at New Orleans, as proof of the dishonor of the bill. The protest is for non-payment for want of funds; and it does not appear that there had been any prior protest for non-acceptance. Bills of exchange payable at a given time after date, need not be presented for acceptance at all; and payment may at once be demanded at their maturity. The objection now made does not turn upon this point, but upon the point that the present is not a foreign, but an inland bill of exchange, being drawn in Kentucky, and payable at New Orleans in Louisiana; and that a notarial protest is not in such cases evidence of a demand and refusal of payment. We do not think it necessary in this case to decide whether a bill drawn in one State upon persons resident in another State, within the Union, is to be deemed a foreign, or an inland bill of exchange. Foreign it certainly is not, if by such appellation is understood a bill drawn upon a country under a totally distinct and independent sovereignty and allegiance. Inland it is not, if by that appellation is understood a bill drawn in one part of a territory, on another part, exclusively under the same municipal laws, and exclusively governed by the same sovereign power. It would seem to constitute an intermediate case. Different tribunals in the United States, of great respectability, have, however, differed upon the question; and it may all be left for a final decision, until it constitutes the very turning point of the judgment.

It is admitted, that in respect to foreign bills of exchange the notarial certi

The Union Bank vs. Hyde.

ficate of protest is of itself sufficient proof of the dishonor of a bill, without any auxiliary evidence. It has been long adopted into the jurisprudence of the common law, upon the ground that such protests are required by the custom of merchants; and being founded in public convenience, they ought, everywhere, to be allowed as evidence of the facts which they purport to state. The negotiability of such bills, and the facility as well as certainty of the proof of dishonor, would be materially affected by a different course; a foreign merchant might otherwise be compelled to rely on mere parol proof of presentment and dishonor, and be subjected to many chances of delay, and sometimes to absolute loss, from the want of sufficient means to obtain the necessary and satisfactory proofs. The rule, therefore, being founded in public convenience, has been ratified by courts of law as a binding usage. But where parties reside in the same kingdom or country, there is not the same necessity for giving entire verity and credit to the notarial protest. The parties may produce the witnesses upon the stand, or compel them to give their depositions. And accordingly, even in cases of foreign bills, drawn upon and protested in another country, if the protest has been made in the country where the suit is brought, courts of justice sitting under the common law, require that the notary himself should be produced if within the reach of process, and his certificate is not per se evidence. This was so held by Lord Ellenborough, in Chesmer vs. Noyes, 2 Campbell's R. 129.

"It is not disputed that, by the general custom of merchants in the United States, bills of exchange drawn in one State on another State, are, if dishonored, protested by a notary; and the production of such protest is the customary document of the dishonor. It is a practice founded in general convenience, and has been adopted for the same reasons which apply to foreign bills in the strictest sense. The distance between some of these States, and the difficulty of obtaining other evidence, is far greater than between England and France, or between the continental nations of Europe, where the general rule prevails. We think upon this ground alone, the reason for admitting foreign protests would apply to cases like the present, and furnish a just analogy to govern it. There is as little doubt that such is the custom in relation to bills drawn on New Orleans, where the jurisprudence of the civil law mainly prevails, and under which acts of this sort are generally verified by notaries. The act of Kentucky of 1798, ch. 57, 2 Littell's Statutes, 101, also recognises the propriety, if not the indispensable necessity of a protest, not only in the cases of foreign bills generally, but of all bills drawn on any persons out of the State, or within any other of the United States; providing that the same being returned back unpaid with a legal protest, the drawer and all others concerned shall pay the contents, &c., with legal interest from the time the said bill or bills were protested, the charges of protest, and ten per cent. advance for the damage, &c.' The contract for the acceptance and honor of the present bill was, if made at all, made in Kentucky, and was to be governed by its laws; even supposing that the question whether it amounted to an acceptance or not, was to be governed by the law of Louisiana, where the contract was to be executed. So that in either view of the matter; upon the general custom of merchants, or the lex loci contractus; we think the protest was rightly admitted in evidence. Wherever a protest is required to fix the title of

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the parties; or by the custom of merchants is used to establish a presentment or dishonor of a bill; it is competent evidence between the parties who contract with reference to the presentment and dishonor of such bill. And there is no doubt that it was material for this purpose under some of the counts in the declaration."

MUSSON ET AL. US. LAKE.*

The Notarial Protest of a foreign bill of exchange must set forth specifically the fact, that the bill itself was exhibited to the acceptor when payment was demanded of him.

MR. JUSTICE MCKINLEY delivered the opinion of the Court.

The plaintiffs brought an action of assumpsit, in the Circuit Court of the United States for the Southern District of Mississippi, against the defendant, an endorser of a bill of exchange, drawn at Vicksburg, in said State, by Steel, Jenkins & Co., for $6,133, payable twelve months after the first day of February, 1837, to R. H. & J. H. Crump; and addressed to Kirkman, Rosser & Co., at New Orleans, and by them afterwards accepted, and endorsed by the payees and the defendant.

On the trial of the case, the plaintiffs offered to read as evidence to the jury a protest of the bill of exchange, to the reading of which the defendant objected; because it did not appear in the protest, that the notary had presented the bill to the acceptors, or either of them, when he demanded payment thereof. And upon. the question, whether the protest ought to be read to the jury as evidence of a presentment of the bill to the acceptors for payment, or as evidence of the dishonor of the bill, the judges were opposed in opinion. Which division of opinion they ordered to be certified to this Court; and upon that certificate the question is now before us for determination.

The endorser of a bill of exchange, whether payable after date or after sight, undertakes that the drawee will pay it, if the holder present it to him at maturity and demand payment; and if he refuse to pay it, and the holder cause it to be protested, and due notice to be given to the endorser, then he promises to pay

* 4 Howard's Reports, 262.

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it. All these conditions enter into and make part of the contract between these parties to a foreign bill of exchange; and the law imposes the performance of them upon the holder, as conditions precedent to the liability of the endorser of the bill. A presentment to and demand of payment must be made of the acceptor personally, at his place of business or his dwelling. Story on Bills, § 325. Bankruptcy, insolvency, or even the death of the acceptor, will not excuse the neglect to make due presentment; and in the latter case it should be made to the personal representatives of the deceased. Chitty on Bills, 7th London ed. 246, 247; Story on Bills, 360; 5 Taunt. R. 30; 12 Wend. R. 439; 2 Douglass, 515; Warrington vs. Furbor, 8 East, 245; Esdaile vs. Sowerby, 11 East, 117; 14 East, 500.

The reasons why presentment should be made to the drawee are, first, that he may judge of the genuineness of the bill; secondly, of the right of the holder to receive the contents; and thirdly, that he may obtain immediate possession of the bill upon paying the amount. And the acceptor has a right to see that the person demanding payment has a right to receive it, before he is bound to answer whether he will pay it or not; for, notwithstanding his acceptance, it may have passed into other hands before its maturity. And he, as well as the drawee, has a right to the possession of the bill, upon paying it, to be used as a voucher in the settlement of accounts with the drawer. Story on Bills, § 361; Hansard vs. Robinson, 7 Barn. & Cressw. 90.

Mr. Justice Story has given the form of a protest now in use in England, in his treatise on bills of exchange, by which it will be seen that the words "did exhibit said bill" are used, and a blank is left to be filled up with "the presentment, and to whom made, and the reason, if assigned, for non-payment." Story on Bills, 302, note. This, with the authorities already referred to, shows that the protest should set forth the presentment of the bill, the demand of payment, and the answer of the drawee or acceptor. The holder of the bill is the proper person to make the presentment of it for payment or acceptance. Story on Bills, § 360. But the law makes the notary his agent for the purpose of presenting the bill, and doing whatever the holder is bound to do to fix the liability of the endorser. Everything, therefore, that he does in the performance of his duty must appear distinctly in his protest. He is the officer of a foreign government; the proceeding is ex parte; and the evidence contained in the pro

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test is credited in all foreign courts. Chitty on Bills, 215; Rogers vs. Stephens, 2 T. R. 713; Brough vs. Parkings, 2 Ld. Raym. 993; Orr vs. Maginnis, 7 East, 359; Chesmer vs. Noyes, 4 Camp. 129. The evidence contained in the protest must, therefore, stand or fall upon its own merits. It rests upon the same footing with parol evidence; and if it fails to make full proof of due diligence on the part of the plaintiff, it must be rejected.

But the counsel for the plaintiffs insists, that the statute of Louisiana, and the interpretation given to it by the Supreme Court of that State in the case of Nott's Executor vs. Beard, 16 Louisiana Rep. 308, have so changed the law merchant, as to render unnecessary the presentment of a foreign bill for payment. After a careful examination of the opinion of the Court in that case, we are unable to perceive any intention manifested to depart from the settled usages of the law merchant; but on the contrary, they attempt by argument and authority to bring the case within that law. The question before that Court was the identical question now before us. The protest was objected to because it did not show that the bill had been presented by the notary to the acceptors for payment. To this objection, that Court said it might perhaps have been more specific if in the protest it had been stated that the bill was presented, and payment thereof demanded. And they admit the law is well settled, that, before the holder of an accepted bill can call on the drawer for payment, he must make a presentment for, or demand of payment, and give notice of the refusal. Here, then, is a definite proposition, asserting that a presentment for payment and a demand of payment are convertible terms, and that the proof of either would be sufficient.

To support this proposition, they refer to Chitty on Bills, and Bayley on Bills, and the annotators on them. And as further proof and illustration, and to show that demand of payment should be preferred to presentment for payment, they refer to the statute of Louisiana, passed in 1827, in which they say the word demand is used in it, and that the word presentment is not; and they refer to the statute, also, to show that notaries were vested with certain powers by it, which gave authority to their acts; and that they being public officers, the presumption of law is, that they do their duty; and therefore, if the protest were defective, and liable to the objection urged against it, this pre