
    [Lancaster,
    June 1, 1829.]
    RAHM, Executor of KAPP, against The PHILADELPHIA BANK.
    ' IN 31RR0R.
    When a promissory note is payable at a particular place, such as a bank, and on a particular day, and the endorsee is at the bank until it closes, at the usual hour, on the day on which the -note falls due, ready to receive payment, no further demand on the drawer is necessary, in order to charge the endorser.
    Verbal notice, to the. endorser, of non-payment by the drawer is sufficient.
    The act of assembly incorporating the Philadelphia Baiik, by the terms of which, notes discounted by .that bank, are placed on the same footing as foreign bills of exchange, does not render a protest and notice thereof to the endorser necessary, in order to charge him. ' •
    Writ of error to the Court of Common Pleas of Dauphin county.
    The Philadelphia Bank was plaintiff belo.w, and;-sued on the following note, endorsed by Kapp, and discounted by the bank:—
    
      “Harrisburg, December 12th, 1814.—Sixty days after date, I promise to pay to Michael Kapp,-ox order, at the Office of Discount and Deposite, Harrisburg, without defalcation, fifteen hundred dollars, for value received.
    
      u Samuel Laird.”
    
    
      1 It was in evidence, that Fahnestock, the president, on the day of payment, the 13th of February, 1815, after the board of directors had broken up, seeing Kapp, told him that the note was not renewed; that he, Kapp, had betterrenew.it, or the note would be under protest; to ¡which Kapp answered,.that he would endorse no more for Laird. ' It also appeared, that Carson, a clerk in the bank, ■ on the same 13th of February, after bank .hours, by directiomof the cashier, took-the note to Kapp tó' demand payment, or a renewal, when he replied, that he would do nothing in it; that afterwards, on .the same day, Carson carrie'd the note to a notary public, who then protested it.. The notary neither gave nor sent any notice to Kapp: but, the rtext day, the 14th, the same clerk, by the direction of the cashier, went to Kapp, and told him the note was protested, and requested him tp pay it off, or have.it renewed. Before the note became due, Laird, the drawer, had died, and administrators of his estate had been, appointed. ,
    On the trial, the plaintiff below requested the court to charge the . jury as follows:—- •
    
      “ 1. That, when' the note is payable at a particular place, such as a bank,' and on a particular day, and the endorsee was there until the'bank closed, at the usual.hour of closing the bank, on the day it fell due, ready to receive payment, no further demand on the pro-miser is necessary to charge, the endorser. , '
    
      “2. That there,is no particular form of notice, to the endorser of a note, prescribed by law; it is enough if-under all circumstances it puts him on inquiry; and this-may be as well a verbal as a written notice; and this notice may be given by any person authorized to give such notice; and that the agency of a notary public is not necessary to give such notice, nor is it his duty to do so.
    
      “ 3. That a protest of a promissory note, or inland bill of exchange, and notice thereof, are not necessary to charge the endorser ■—This doctrine only applies to foreign bills of exchange.
    “4. Here the defendant lived in the town’where the bank was held; no written notice was necessary; verbal notice in this case was more regular.
    
      “ 5. That the act of assembly, incorporating the Philadelphia Bank, and which places notes,' or bills discounted at that bank, on the footing of foreign bills of exchange, applies only to the case of defalcation,, and- does not alter the nature of the promissory note, so as-to require a protest, as in case of á foreign bill of exchange.
    “ 6. -That this suit is founded on a promissory note, payable at the Office of Discount and Deposite at Harrisburg, where both the drawer and endorser lived—and verbal notice was given by John Carson, a clerk in the bank; after the bank closed, on the same day the note fell due, by presenting the same to the endorser, Michael Kapp, the defendant in this cause, that the note was not paid; and a request to pay the same, or renew it with another note, was made, which was sufficient to charge the endorser without protesting the note, or producing a copy of a protest of the same note to the endorser. . ‘
    
      “ 7. That it having been proved in this cause by the notary public, that the note was regularly protested on the day it fell due, and after the hour of closing the hank, notice: of which protest was given to the defendant on the next'day, by a regular-clerk of the Office of Discount and Deposite, this is sufficient notice in lav;,-to charge the endorser, without producing the protest to him.”'
    The court, in their charge to the jury, among other things, stated, “ That demand o.f payment of a note at the Office of-Discount . and Deposite, is sufficient, if the note is drawn payable at the said office, for in such cases, the payment of the note at the Office of Discount and Deposite, is part of the contract. .But where no time and place, are fixed for the payment of a note, then theré must be a demand on the drawer.
    “If-the Office, of Discount and Deposite was the owner of the note, and held the -note on the day, and at the place mentioned in it for payment, and was ready to receive the. money, notice to the .drawer to pay it was not necessary, nor was a demánd on the administrators of Mr. Laird, (who died before the note fell due,) necessary: a notice, by the clerk of the Office of Discount and Deposite, sent for the purpo-se, to the endorser, of the default of payment by the drawer, is good notice if it be given in due and proper time.
    
      f‘ Verbal notice is sufficient—a written notice is not necessary.' No form of notice to th,e’endorser is prescribed by law. All that is necessary is, that he should have such notice, either verbal or written, given in time, as will inform him, of the default of payment by the maker or drawer, so as to put him on an inquiry, and prepare him to pay it, or defend himself. .
    “No protest was - necessary,; and notice of a.protest was not required or necessary to be given to Michael Kapp. It is sufficient if the endorser receives notice in a reasonable time, of the non-payment of the note by the drawer. The provision in the third section, article tenth, of the act incorporating the Philadelphia Bank, 4 Smith, 153,153, which places notes discounted by the bank, ‘ on the same footing with foreign bills of exchange,’ is for the purpose of preventing a defalcation or set-off by the drawer against the endorsee, of such equitable matters and circumstances to -which the note was subject in "the hands of the- endorser. 3 -Dali. 363. A protest is not essentially necessary to enable the endorsee of-a note to recover; but is indispensably-requisite in the case of a foreign bill of ex- ■ change. . -
    
      “ It is contended. by the defendant’s counsel, ‘ that there is no evidence that Mr: Laird, or his administrators, had not. funds in the Office of Discount and Deposite, to meet the payment of the note.’ There is evidence of a protest of the note; and this protest 
      ns,prima facie evidence of the fact that there were no funds there: if there were funds there, it lies on the defendant to show the fact.
    “And although'this protest is stated to be made at the request of the Office of Discount and Deposite,’- this does not render the protest void; for it is. not necessary that it should be stated, that it was made at the.request of the Philadelphia Bank. Nor does the delay in bringing suit, for two years, in law, discharge the endorser.
    “Did Michael Kapp receive notice on” the 13th oí-February, .1815, that the note was -not paid? This is a fact for the jury to ascertain from the evidence. If Michael Kapp did not receive such notice on. that day, he would be discharged from his liability as endorser. If.'.he did receive such notice on that day, he will be liable for the- payment of; the ■ note. As- he lived in the same town-with.the other parties, notice .ought to have been given on the same day, the 13th of February, 1815; for the earliest, notice ought to be given. Notice given on the .next day is not sufficient.”
    The counsel for the plaintiff excepted to the charge of the court on the seventh' point,.and the residue.of the charge.was excepted to by the counsel for the defendant. The-verdiqt was for thd plaintiff, and the defendant took a writ of error.
    ’ The following errors were assigned in this court:—■
    “1. That the court "erred,-in law, in charging the-jury on. the plaintiff's points, Nos.' 1, 2, 3,4, 5, and 6.
    “ 2.' The court gave it as the law,, that no protest was necessary to eharge’the endorser, and create a liability in him to pay,' •
    “3. That there was no demand of payment of the note made of the payer, Samuel Laird, or of his representatives, when the note fell due; -and, no notice of a demand of, and non-payment by the payer, given to the endorser, as required by law;, and, that the statements filed in the cause, set out no cause of action.
    “ 4. That the court erred in their general charge to' the jury, in stating, that demand of payment-of a note, at the Office of Discount and Deposite, is sufficient) if the note is drawn payable at the said office: that if the Office of Discount and Deposite was the owner of the note, and held the note on the day, anti at the place mentioned in it for payment, and was ready to receive the . money ? notice to the drawer to pay it was1 not necessary; nor was a demand on the administrators of. Mr. Laird,(who died before the note fell due,) necessary; and, that a 'notice by the clerk of the Office of Discount and Deposite, sent for the purpose to the endorser; of the default of. payment by the drawer, is good notice, if it be given in due and proper time: That no protest.was necessary; and notice of a protest was not required; or nécessary to be given'to Michael Kapp; and it is sufficient if the endorser r'ecei'ves notice in a reasonable time of'the non-payment of the note by the drawer. And that the proyision in the third section,, article tenth, of the act incorporating the Philadelphia Bank, 4 Smith, 152,' 153, which places notes . discounted by the bank, fon the same footing with foreign bills of exchange/ is for the purpose of preventing a defalcation, or set-off by the drawer against the endorsee, of "such equitable matters-and circumstances to which the note was subject in the hands of the endorser,” &c. -. .
    
      Douglas and Elder, for the plaintiff-in error,
    argued, That there is no averment in the record, nor was there1 any proof, of demand on the drawer, or his representatives'. "Demand is-necessary, or an effort to make it. Chitty on Bills, 279. Duncan v. M'Cullough, 4 Serg. & Rawle, 481. It is immaterial at what .place "the note may > be payable, under the circumstances -of this case- The endorser is but a surety. His promise is conditional. Only the law merchant makes him liable. M‘Kinney v. Crawford, 8 Serg. & Rawle, 353. There is no dispensing with notice - on account of death, bankruptcy, &c. Gibbs v. Cannon, 9 Serg. & Rawle, 201. Nearly every point of this case -seems decided by the case of The Juniata Bank v. Hale, 16 Serg. & Hawle, 159. But the act of assembly 'is conclusive. The wbrds are absolute and peremptory."■ “And all notes, or bills, at- any 'time discounted by .the said corporation, shall be, and they are hereby placed on the same footing as foreign bills of exchange; so that the like remedy shall be had for the recovery thereof against the drawer and drawers, endorser and endorsers,.and with like effect, except so far as ' relates to damages, any law; custom, or usage to the contrary thereof, in any wise notwithstanding.” 4 Sm. L: 152, sect. 3d, art. 10 th. Now, the rule contended for is, that a protest of a fore'igh. bill of exchange must be made, and legal notice of the protest given, or sent, unless as against him-who draws without- funds in the hands of the drawee., Rob. Dig. 378, et seq. Gale v. Walsh, 5 T. R. 239. 1 Selw. N. P. 321. . 2 T. R. 713. 3 Comm. 467, &c. Chitty on Bills, 279, et seq. Ib. Appendix, Narr. on Foreign Bills, Lenox v. Leverett, 10 Mass. 1. Indeed, what possible use can there be in a protest, if it is to be concealed, and no information of it .given ?
    
      Shoch and G. Fisher, contra, denied, that giving a copy of -the; notice was necessary, either by .the mercantile law, or by the act of assembly. The protest, itself, is unnecessary on a note, or inland bill. Chitty on Bills, 276, 284. 5 Johns. Rep. 375. The Bank of North America v. M'Knight, 1 Yeates, 145. As to the words of the charter' relied oh, their sole intent was to obviate the mischiefs of setoff. .It was'so decided on the same words in another law, in the case of Roberts v. Cay’s Executors, 2 Dall. 260. This decision was followed in the construction of much stronger words of a bank charier, in the .case.of the Farmers’ and Mechanics’ Bank v. Massey’s Executor, 2 Serg. & Rawle, 114, and Wolfersberger v. Bucher, 10 Serg. & Rawle, 10. Here notice of the pro-test was in fact given. • Even were it the very case pf a foreign bill of exchange, the decision of the court below was right. 1 M. &. S. 289. Ib. 545. 3 Camp. 334. 2 Johns. Cas. 337. 10 Johns. Rep. 490. 11 Johns. 231. Chitty on Bills, 289.
    
   The opinion of the court was delivered by

Tod; J.

The errors alleged may, for.’ the sake of shortness, be reduced to three. 1. In deciding, that no demand was requisite upop Laird) the maker of the note,'or' upon his representatives. 2. That verbal notice -by the clerk of the bank, was sufficient. 3.. In deciding, that under the words of the act’of assembly, incorporating the bank, both the 'notice of protest, and the protest itself, were unnecessary. ' ’ '

. " On the two first allegations of error, there is not, except from the peculiar wording of the act; of assembly, the least doubt with any ■member of the court. We all agree, that in the common case of a note, under the circumstances, here appearing, it would, have been unnecessary to make any demand of the drawer, or his representatives. Chitty on Bills, 395, 295, 297. Berkshire Bank v. Jones, 6 Mass. 524. Also, that the 'agency of a notary public was unnecessary, and that the yerbal notice' sent by the clerk of the bank ' was sufficient. Chitty on Bills, 276, 284, 293, 295, 297. Bank of North America v. M‘Knight, 1 Yeates, 145. S. C. 2 Dall. 158.

On the third point; was a protest, and notice of it to the endorser, rendered necessary by the words of the act of assembly, placing notes discounted at this bank on the same footing with foreign bills of exchange? It seems to me not. As to the reason for imposing, per force, this troublesome formality upon the bank and the dealers with it, a formality which may be dispensed with, if the holder pleases, in every ¿otnmon case of a.note or inland bill; it is not even alleged, that' any reason exists. But it is argued, .the words of the' law are positive to that .effect. They are' not so in my opinion. Clear, it seems to me; that the legislature had not the remotest intention to lay down any indispensable 'form of proof, or. to change the law of evidence, but only to secure, the bánk from loss or dispute, arising out of the previous deálings between the parties to a , note or bill discounted; and from all defence of want or failure .of a consideration. It seems very common in statutes providing for any species of; negotiable paper, against the strict rule of the common law, to declare the intent by express reference to foreign bills of exchange. There are similar words in most, if not all. of our bank charters. So, in the first' and second acts of congress, creating the Bank of the United States. In the very act of assembly in ques- ' tion, the usual bank notes to be issued by the bank of Philadelphia, though not under their seal, shall bp binding and obligatory upon the corporation,' in the like manner, -and with the like effect, as foreign bills of exchange now are. Now, it will hardly be contended, that a note of this. bank, payable to A. B. or bearer, may not be sued on by C. D. without the forms of. protesting. But I take the question to be already settled. Ori the same words in the charter of the Bank of Pennsylvania, this court held, in Roberts v. Cay’s Executors, 2 Dall. 260, that a note thus discounted, was placed on the footing of a foreign bill of exchange, only as to the remedy and the exemption from set-off. .And in effect this decision was followed up in the cases of the Farmers’ and Mechanics’ Bank v. Massey’s Executor, 2 Serg. & Rawle, 114, and Wolfersberger v. Bucher, 10 Serg. & Rawle, 10. There-would seem'to be another ground upon which this judgment might be sustained. Admitting that the case requires the’same evidence which would be required to support an action on a foreign bill of exchange, sent from a distant country, yet it seems.to be the settled mercantile law, that neither the copy of the protest, nor notice of it, need be given or sent, in the case of a foreign bill, where the party to be affected happens to be in the country at the time of the refusal to accept or to pay. My opinion is to affirm the judgment.

Rogers, J. and Smith, J., concurred in-the above opinion. Gibson, C. J. and Huston, J. dissented.

Judgment affirmed.  