
    Lail et al. vs Kelly.
    Pet. & Sum.
    Error to the Harrison Circuit.
    
      Case 5.
    
      September 9.
    The Case stated and judgment of Circuit Court.
    
      Bills of Exchange. Protest. Notice.
   Chief Justice Robertson

delivered Hie opinion of the Court

In this case a judgment by default in favor of the holder of a protested foreign bill of exchange, in an action by petition and summons, against the drawer, indorsers and acceptor, is brought here for revision, on two alledged defects in the petition, to-wit: — 1, An omission to aver presentation for payment — 2, The want of an express averment of protest.

But neither of the objections to the judgment is, in our opinion, sufficient to authorize a reversal.

Trimble for plaintiffs : Monroe Smith for defendant.

By the statute of 1837, Ses. Acts, 43, “notarial protest shall be evidence of the fact of presentation and nonpayment,” — and when on the face of the bill it is agreed“that protest shall be evidence ofdne presentment” —the exhibition of a notarial protest, is conclusive both ofpresentationandnon-payment. '

1. The 6th sec. of the statute of 1837, (Session Ads, 43,) with which the petition precisely conforms, declares that a notarial protest shall be evidence of the fact of presentation and non-payment — and the bill of exchange in this case expressly stipulates, that “protest shall be evidence of due presentment,” If there be a sufficient averment of a protest, therefore both objections to the petition must fall together.

2. The only averment as to protest, is in the language of the form prescribed by the act of Assembly, and that is the averment of “notice of the protest.” This necessarily implies that there had been a protest — and, being all that the statute requires or seems to have contemplated, must be deemed, prima facie, sufficient to show that there had been a regular, authentic, and effectual protest.

Wherefore, the judgment of the Circuit Court must be affirmed.,  