
    William Payne, Endorsee of a Promissory Note, against Joseph Winn, Endorsor.
    
      Charleston District,
    
    1802.
    A formal protest by a notary is not necessary on an inland bill of exchange or promissory note, though reasonable notice is required, In order to charge an endorsor, that such note qr bill has not been duly l>aid-
    CASE on a promissory note against the endorsor. Verdict for plaintiff four hundred and sixty dollars. Motion for a new trial.
    The defence in this case was, that after the note became payable at the South Carolina bank, it was not regularly protested agreeably to the rules of the bank, so as to enable the defendant as the endorsor, to go over against the drawer, Thomas Cave, for payment or'security.
    T he case as reported, was briefly as follows : The defendant had endorsed the note in question, for the accommodation of Thomas Cave, which came into the hands of the plaintiff as endorsee, who lodged it in the South Carolina, bank for collection. When it became due, the drawer, Thomas Cave, who had failed in the intermediate time, was unable to take it up, in consequence of which, it was lodged in the hands of George Reid, the notary of the bank, for the purpose of being protested’, who proved, that after the note had been put into his hands to be protested, he called on the defendant and gave him verbal notice that the note was not paid at the bank when due, by Cave the drawer ; but he did not formally enter up the protest at that time, under his notarial seal cf office, as if it had been a foreign bill. The note in question, was due on the 6th, and payable on the 9th of December, 1799.
    
    
      On the part of tKe defendant, it was proved that Cave had paid oif several notes which fell due after the 9th of December, 1799, to wit, one endorsed by Spencer Man for five hundred dollars, in favour of Joseph Peppin, which fell due the 10th December, and was paid the 13th ; and another endorsed by Knipping and Steinmitz, which fell due on the 15th of December following. And therefore it was contended, that if the note in question had been protested by the notary, or if Cave had been threatened to have the protest registered up in the bank, for the purpose of stopping his credit there, he would have found ways and means to have paid this note, as well as the two subsequent ones ; or perhaps, in preference to the others ; but as the plaintiff allowed him this indulgence, he ought to take the consequences of it. It was further proved to be the custom of the bank, not to register protests on notes lodged for collection, in which the bank was not interested, so as to affect the credit of the drawer at the bank, unless orders were given for that purpose by the holders of the notes; and that as no such orders were given in this case, it was urged that the holder, Payne, gave this further indulgence to Cave himself, in order to save his credit with the bank, and therefore should not now come over against the defendant as endorsor. That he had lost his money by want of due diligence.
   The presiding Judge (Trezevant)

charged the jury in favour of the plaintiff, who accordingly found a verdict for the amount of the note with interest. The present was therefore a motion for a new trial, on the ground of misdirection, &c.

After hearing arguments for and against this motion, the judges were unanimously of opinion, that the want of a formal protest by the notary in this case, was no bar to the plaintiff’s recovery against the endorsor. A protest does not raise any new debt, or create any further responsibility on the parties to a bill, or note ; but only serves to give formal notice, that a bill or note is not duly accepted or paid., This protest by the common law is absolutely necessary'em every foreign bill of exchange ; but it is not necessary on any inland bill of exchange, either by the 'common law, or by any statute of force in this country, unless to entitle the party to interest and damages. Cunn. on Bills, 17. 55. 66. As long as a note of hand remains in its original state, without endorsement, it bears no similitude to an' inland bill of exchange ; but the moment it is endorsed to a third person, the similitude begins ; and then the maker of a note is in the same situation as the drawer of an inland bill of exchange, and the person endorsing it as an endorsor on such bill. Cunn. 72. But although no formal protest is necessary to charge the endorsor on such note, yet convenient and reasonable notice ought to be given him, that the-drawer had not paid the bill, or a demand made on him on that account, before any action can be made against such endorsor. Cunn. 54. 72.

In the present case it does appear, that Mr. Reid\ the notary, in whose hands the note was placed by the officers of the bank, or holder, did give the defendant this due notice, that this note was not paid by the drawer within the three days of grace, allowed by the bank for payment of notes after they become due; so that there appears to have been that convenient and reasonable notice here which the law requires. With respect to the registering up of notes in the bank, so as to affect the credit of the drawer, that seems to be a' private regulation of the bank, for the government of the officers of the bank ; but it forms no part of the law of merchants, in regard to endorsors on bills or notes. And as to Cavers paying off two notes afterwards, without taking up this one, that was a matter between him and the other holders or endorsors, over which the present plaintiff had no «ontrol. He could ,not force him, or compel him to make the payment unless he pleased; All that he could do on the occasion, was to give the defendant due notice of the failure of the drawer, and that has been done. And if the defend» aht has been damnified by the failure of the drawer, that was his misfortune, not the fault of the holder of the note.

Motion for new trial refused, and rule discharged.

Present, GuiMKE, Waties, Bay, Johnson, Trezevant and Brevard.  