Bay v. Church

Storrs, J. This is an action brought by the plaintiffs, citizens of the state of New-York, against the defendant, a citizen of this state, as the indorser of a promissory note, drawn by a corporation located in and incorporated by the legislature of this state, and made payable in the state of New-York; and the only question is, whether a formal notarial protest is requisite in order to charge the defendant. The defendant claims, that the indorsement of this note to the plaintiffs constituted a bill of exchange, drawn by the defendant on the maker, in favour of the plaintiffs ; and that, as the plaintiffs were inhabitants of and residents in the state of New-York, and the note was payable in that state, such bill was a foreign bill; and therefore, that a formal protest was necessary. There is no doubt that a notarial protest is indispensable in case of the non-acceptance or non-payment of foreign bills. Such protest is said to be a part of the very constitution of a foreign bill. It is in accordance with the general custom of merchants, and is thus a part of what is termed the lex mer-catoria, or law merchant, which is incorporated into the common law and constitutes a part of it. Gale v. Walsh, 5 Term Rep. 239. Orr v. Maginnis, 7 East 359. Union Bank v. Hyde, 6 Wheat. 572. 1 Cranch 263. 1 Chitt. Bills, 215. This quality, however, does not belong to inland bills ; and it has always been held, with regard to them, not only that no protest is necessary, but that such protest at common law could not be made. 1 Chitt. Bills 215. 310. (5 Wheat. Rep. 146. 572. 8 Wheat. Rep. 326. Foreign bills had their origin at a much earlier period than inland bills. 1 Chitt. Bills, 7. And when it was determined, that the quality of negotiability and the same principles of construction attached to the latter as to the former, they were deemed unlike in respect to the necessity of a protest. Kyd on Bills 142. In England, it is by virtue of statutory provisions alone, [18] that inland bills of any description can be protested. We ■ have no suds statute. There, however, it is necessary only to enable the holder to recover damages ; and the amount oí the bill with interest may be recovered, without a protest. 1 Chitl. 218. With respect to promissory notes, it is unnecessary to examine the much agitated question whether they were negotiable by the common law of England. In Connecticut, it was well settled, prior to the statute of October, 1811, that they were not negotiable. That statute provides, that all promissory notes, to the amount of thirty five dollars or more, for the payment of money only, and made payable to order or bearer, shall be assignable and negotiable according to the custom of merchants and the laws relating to inland bills of exchange. If, therefore, a promissory note negotiated by indorsement, is, as claimed by the defendant, to be deemed a bill of exchange, it is an inland, and not a foreign, bill, and partakes only of the properties of the former. 2 Conn. Rep. 478. The necessity of a protest is not one of those properties. On principle, therefore, no protest was necessary, in this case. The authorities on this point are also decisive. In Young v. Bryan & al. 6 Wheat. Rep. 146. which was an action brought by a citizen of Pennsylvania against a citizen of Tennessee, as the indorser of a promissory note drawn by another citizen of Tennessee, and indorsed to the plaintiff, it was held, that no protest was necessary. Ch. J. Marshall, in giving the opinion of the court, considers the point so entirely settled, that he merely says, “ No protest of a promissory note or inland bill of exchange is necessary.” The same principle is also decided in Union Bank v. Hyde, 6 Wheat. Rep. 572. and in Nicholls v. Webb, 8 Wheat. 326. The defendant insists, that the note in question, being drawn payable in the state of New-York, is to be governed by the laws of that state. If this be admitted, it does not aid the defendant, since it does not appear what the law of New-York is on the subject; and, in the absence of any averment respecting it, we are to presume that it is the same as our own. [19] The superior court should, therefore, be advised, that the plea is insufficient. In this opinion the other Judges concurred, except Church, J., who gave no opinion, being related to one of the parties. Plea insufficient.