McAndrew v. . Radway

This action is brought against the defendant, to charge him as indorser of a foreign bill of exchange. The bill was protested in England, on the 17th of June, 1858, for non-acceptance, and notice given to the defendant, who resided in New York, on the 7th or 8th of July, 1858. The bill arrived, with the protest, on the 6th of July, and on the next day notice was given of its dishonor to the defendant. The plaintiffs had been informed, by letters received by them on the first day of July, that the bill was refused acceptance, and was about being protested. By the succeeding steamer the plaintiffs received the protest from the notary, and, it is to be presumed, the notice of protest, and the next day gave the defendant notice of its dishonor, and exhibited to him the protested bill and protest. Verdict and judgment for plaintiffs, and same affirmed at General Term. I see no error in the charge, or the refusals to charge, of the learned judge at the circuit. The first request to charge was based upon a criticism of the certificate of the notary, that it did not appear from the certificate that he personally demanded acceptance of the bill. As I read the certificate, the notary himself demanded the acceptance of the bill. Wherefore, he says, I, the said notary, have protested, c. The demand of acceptance is stated as the personal act of the notary. It might well be that he caused due and customary presentment *Page 512 to be made of the bill. This is the universal usage among notaries, to employ an agent or clerk to present a bill for acceptance. It is not necessary for the notary to procure the acceptance. Any person not a notary may do this. It is in no sense an official act. But if it is not accepted, then it is necessary, as a part of the proceeding to legally protest, that the officer making the protest should himself personally demand the acceptance, and then, and then only, is he authorized to protest the bill. All this may be inferred from the language used in the certificate. There does not seem to be anything important in any of the other exceptions taken by the defendant, or calling for especial notice. All the questions which arose at the trial seem to have been properly disposed of by the learned justice at the circuit, and the judgment should be affirmed, with costs.