
    
      CAUNE vs. SAGORY.
    
    Appeal from the court of the first district.
    An agent, entitled to commission, is good a witness, for his principal.
    The protest of a bill of exchange proves itself.
    The action was brought on a protested bill of exchange, of which the defendant was the immediate endorser of the plaintiff. The latter, had a verdict and judgment, and the former appealed.
    There was no statement of facts, and the cause was heard above on two bills of exceptions.
    At the trial, Hennen, the plaintiff's counsel, offered himself as a witness, to prove that the defendant had promised to pay the amount of the bill, on which the suit is brought. On which Morel, the defendant’s counsel, required him to be sworn on the voire dire, which being done, he declared that there is no bargain or agreement of any kind between the plaintiff and himself—that if he obtain judgment and collect the money, he will charge five per cent on the sum received, and if he do not recover, he will charge twenty-five dollars. The district court was of opinion that the witness should be sworn in chief: to this opinion the defendant's counsel excepted.
    East’n. District.
    
      Dec. 1815.
    The plaintiff’s counsel next offered in evidence two documents, purporting to be signed by an huissier, as legal protests of the bill of exchange, the reading of which was objected to, on the ground that the signature of the huissier and witnesses, formed no legal proof of their authenticity. The objection was overruled by the court, and the defendant’s counsel excepted to the opinion of the court in this respect.
    
      Morel for the defendant.
    The district court erred in admitting the plaintiff’s attorney as a witness, whose compensation was to increase in proportion to the amount of the judgment to be recovered. A witness must not be interested. directly on indirectly, in the cause. Civil Code, 312, art. 148.
    The court erred likewise in receiving the documents offered as proof of the protest of the bill, the signature of the huissier does not carry with it any legal proof of their authenticity. Whatever faith maybe given to a notarial act, clothed with the official signature and seal, no authenticity can attach to the mere signature of a person who states himself a huissier, and of two unknown individuals by whom he may cause himself to be attended. Admitting the authority of the huissier to make the protest, which, however we strongly deny, his signature and official capacity, ought to have been certified by the presiding judge of the tribunal to which he belongs, and his certificate ought to have been authenticated by the consul of the United States, in Nantes. It is impossible that the courts of the United States should be acquainted with the signatures and official capacities of persons who describe themselves as officers of a foreign government. Truth and credit will be given to the attestations of our consuls abroad, and it is their business to authenticate acts executed in the places of their residence.
    
      Hennen for the plaintiff.
    It is the constant practice of courts to admit agents to be witnesses for their principals, in order to prove contracts made by them, on the part of the principal: and this is allowed from necessity or rather for the sake of trade and the common usage of business. Mackay vs. Rhinelander and others. 1 Johns. cases, 408. Jones vs. Hake, 2 id. 60. Burlingham vs. Dayer, 2 Johns. Rep. 189. Ruan vs. Gardner, 2. Condy’s Marsh. 706. b. Thus a factor may prove a sale, though he is to receive a poundage on its amount (Dixon vs. Cooper, 3 Wils. 40. 1 Atk. 248.) or what he has bargained for, beyond a stated sum. Benjamin vs. Porters, 2. H. Bl. 590. R. vs. Phipps, Bull. N. P. 289. And every person who makes a contract for another is an agent, within the meaning of this rule. 2 H. Bl. 591. Phillips on Evidence, 94.
    The form of the protest of a bill of exchange is always conformable to the custom of the country where it is made. Chitty on Bills, 4th ed. 231. Pothier, Contrat de change, no. 155. Pardessus, Lettres de change, no. 351.
    A protest, though by the custom of merchants it is indispensably necessary, and though it cannot be supplied by witnesses or oath of the party, or in any other way, is yet but mere matter of form; and to it all foreign courts give credit: 
      Chitty on bills, 228. The mere production of which, without shewing by whom it was made, will be sufficient. Chitty on bills, 408.
    The protest in this case was made by a huissier and two witnesses as directed by the code de commerce, art. 173, Pardessus, Lettres de change, no. 354. It proves itself, and the defendant cannot require further evidence than its production with the bill.
   Derbigny, J.

delivered the opinion of the court. This is an action, by the holder of a bill of exchange against one of the endorsers. It comes up, to this court upon two bills of exceptions taken by the defendant.

By the first, it appears that the plaintiff’s counsel having offered himself as a witness to prove that the defendant had promised to pay the amount of the bill, he was challenged as interested in the cause, and that, being examined on his voire dire, be declared that he had entered into no agreement with his client for his fees, but intended to change him a commission of five per cent, that is to say, thirty-one dollars if he should recover the money, or a fee of twenty-five dollars, in case of loss: from which it clearly results that he was to receive as much in case of loss as in case of success: the difference of six dollars being hardly a compensation for the further trouble, which the witness was to take, in the latter case, to collect the money after judgment.

The second bill of exceptions shews that the plaintiff having offered to produce in evidence a protest, purporting to be signed by a huissier and two witnesses, the defendant opposed the introduction of the evidence, on the ground that the “signatures of the huissier and witnesses formed no legal proof of their being authentic.” From the manner in which the defendant’s counsel argued on this exception, it appears that he meant by these expressions, first, that the signature of a huissier is not that, which ought to appear on the protest of a bill of exchange, and secondly, that the signature which is affixed to the protest is not duly authenticated, because not certified by the consul of the United States.

The allegation that a huissier is not the officer who ought to protest a bill of exchange is not supported by law, the French code of commerce providing positively that such protest is to be made by a notary and two witnesses, or a huissier and the like number of witnesses.

As to the other objection. It is the practice of courts of the United States to receive in evidence the protest of a bill of exchange, without requiring proof of the signature of the officer, who received it: and we see nothing in the laws of this state, which is repugnant to the admission of such practice among us, especially where the signature is not formally denied. The want of legalisation or certificate of the consul of the United States, supposing such a certificate to be evidence, (a point which from the decision of the supreme court of the United States, in Church vs. Hubbard, 2 Cranch, 187. is doubtful) was no reason why the document should have been rejected: because that omission could be supplied, if necessary, by other testimony.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be affirmed with costs.  