
    Augustine Chew et al. vs. Thomas J. Read et al.
    The laws of the place, wheie a bill of exchange or promissory note is payable, must furnish the rule for the manner of making demand and protest.
    Under the statute of the State of Louisiana, passed in the year 1844, which made it lawful for notaries public, to appoint deputies to assist them in making protests, and delivering notices of protest; and under the decisions of the supreme court of that state, made before the passage of that act, sustaining the demand of payment, made of a promissory note By a clerk of the notary, as being sufficient; it was held, that the presentment and demand of payment of a bill of exchange payable in that state, made by a deputy of the notary public, would be sufficient, on due proof of notice, to bind the drawer and indorser.
    
      The notarial certificate of protest, made out by a notary, of the dishonor of a bill of exchange, payable in Louisiana, though on its face it recites that the presentment and demand were made by a deputy of the notary, is sufficient without other evidence.
    Where the presentment and demand of payment of a bill of exchange payable in Louisiana are made by a deputy of the notary, and in the protest it is so stated; and in an action on the bill in this state, the deposition of the notary proves also that fact, as well as that notice was duly given ; it was held, that the deposition was properly admitted in evidence to establish the notice ; the protest proved the presentment and demand.
    Where objections to testimony are not taken in the court below, they will not be regarded by the high court of errors and appeals.
    Appeal from the circuit court of Yazoo county; Hon. Robert C. Perry, judge.
    An action of assumpsit was brought by the appellees against the appellants, as drawers of a bill of exchange for $2047x9o2¡¡-made at Louisville, and payable in New Orleans.
    The protest purports to have been made by William Christy, as notary public, and recites that “the said draft was presented by my deputy, H. Ranshire, who demanded payment thereof, and who was answered that the same could not be paid,” &c. “Whereupon I, the said notary, at the request aforesaid, did protest,” &c.
    On the trial of the action, the plaintiffs below, besides the bill of exchange and protest, offered in evidence to the jury the deposition of the notary, Wm. Christy, to prove presentment for payment to the acceptors, and notice of protest to the drawers. To the reading of this deposition to the jury, the defendants in the court below objected, and stated the ground of their objection to be, that by the laws of Louisiana a deputy notary public has no authority or power to present bills of exchange to be acceptors and demand payment, which objection was overruled by the court, and exceptions were taken.
    The notary, in his deposition, states that, as notary public, he protested said bill of exchange for non-payment, and gave notices of protest; that the bill was presented by his deputy, Henry Ranshire, who was acting as such for him, and who demanded payment thereof, and was answered that the same could not be paid, &c. &c. The deposition proves the due delivery and service of notices to the defendants below.
    The plaintiffs below also gave in evidence an act of the legislature of the state of Louisiana, entitled “ An act relative to protests of bills of exchange,” certified by the secretary of state of Louisiana, under the seal of the state; which act authorizes notaries public in New Orleans “to appoint deputies to assist in the making of protests and delivering of notices of protests of bills of exchange, &c. Provided each notary should be responsible for his deputy; and the deputy shall take an oath faithfully to perform his duties; and provided the certificate of notice or protest shall state by whom made or served.”
    The jury found for the plaintiffs below, and the defendants appealed.
    
      Miles and Baitaile, for appellants, insisted,
    1. That the deposition of Christy was not admissible evidence ; 1 st, because it does not prove a demand of payment before protest by the proper public officer, the notary himself, and a legal protest; 2d, for the reason that the testimony of Christy was inferior and secondary evidence, and the testimony of the deputy, H. Ranshire, should have been adduced, or its absence accounted for satisfactorily. It is a familiar rule of the law of evidence, that “the best evidence must be given, of which the nature of the thing is capable.” 1 Phil. Ev. (Cowen & Hill’s edition) 149, 150, 217, 220; 1 Greenl. Ev. 97. The true meaning of the rule is, not that courts require the strongest possible assurance of the matter in question, but that no evidence shall be given which, from the nature of the case, supposes still better evidence behind in the party’s power or possession, and by him suppressed. The best evidence in this case was to have been had by calling in the first instance upon the person immediately and officially (as pretended) employed in making the demand of payment before protest, the said deputy, H. Ranshire. His was the proper and primary evidence, if the facts alleged would be evidence at all. Christy’s testimony is not only insufficient, but utterly incompetent. In the order of evidence there is a preference to be observed in some cases of persons as well as of subject-matter. 1 Phil. Ev. (Cowen & Hill’s edition) 220; 3 East. 193, 201; 4 Mass. R. 64G, 647; 2 Phil. Ev. note 417, p. 544; note 325, p. 423, 424; note 414, p. 541. 3d. For the reason that it showed no legal protest of the bill, or rather an illegal protest. A bill drawn m one of the United States, and payable in another of the states, is a foreign bill. Buckner v. Finley, 2 Pet. R. 586; Bayley on Bills, p. 21, and authorities there cited; lb. 260. Protest of a foreign bill is indispensably necessary, and cannot be supplied by witnesses, or oath of the party, or in any other way. Chit, on Bills, large edition, p. 489, 490.
    A notary is the only person recognized by the commercial law to protest bills. Bayley on Bills, 256, 516; Chitty on Bills, 472; Chanoine v. Fowler, 3 Wend. 173.
    The steps requisite, in order to protest a bill, Chitty on Bills, p. 492, says, are, that a notary must present the bill to the drawee, and demand payment thereof, and if payment is refused, make a minute thereof, &c. The next step which the notary takes, is to draw up the protest, &c. “The demand of payment is the material thing,” &c. Chitty, in successive editions of his work on bills, lays it down, that a notary’s clerk cannot make a demand of payment. Chitty on Bills, 493, notes (n) and (o), and authorities there cited; Id. 495, 497; and Story on Bills, 323, note (3) on page 324, cites Chitty as authority on the point, and other authorities. See also Leftley v. Mills, 4 T. R. 175; Ex parte Worsley, 2 H. Bl. 275.
    Chitty on Bills, p. 495, says: Certainly in prudence, whilst the question remains undecided, every notary having to protest a bill or bills to any considerable amount, should himself demand payment, and make his own minute, &c.; and also says, in note (o), p. 495, “it may be material, especially in the case of foreign bills, that the demand and account of the particulars of refusal, and reasons assigned for non-payment, should be made by a person of known experience. A proper demand may be essential to obtain payment, and a proper account of the reasons for refusal to accept or pay, may be very material to forward to the foreign country, in order that the proper steps may be taken.” Protest of a foreign bill is evidence of demand and notice. Bay-ley on Bills, 512, 516; Chitty on Bills, 489, 490.
    It is also the solemn declaration of a notary that a due presentment and dishonor has taken place. Chitty on Bills, 490; Story on Bills, § 276, 322, 323.
    2. Does the act of Louisiana authorize the deputy of a notary to present foreign bills of exchange and demand payment of them! What is meant by the language “assisting” in the “making of protest.” Does the term making protest mean simply the clerical duty of drawing up the protest! or does it include within its meaning the doing of all the acts preliminary thereto, and that also! We think the former. The act was not intended to authorize a deputy to make presentment and demand; but only to assist in making (or drawing up) protests, and giving notices.
    If, as we think there was no legal protest made in this case, the deposition was inadmissible to supply the place of one. Chitty on Bills, 489, 490.
    3. If there is error in the record, unless it appear affirmatively that it was waived, the high court will reverse the judgment. 7 S. & M. 121. Christy’s deposition should have, therefore, been rejected, because it appears from his answer to the first interrogatory that the bill of exchange protested by him was not the one sued on. He sets out a “ true copy ” of the bill protested by him, as part of his answer thereto (see the 12th page of the record). From an inspection of it the fact is made manifest, that the bill of exchange sued on is not the same set out in Christy’s answer; for the reason, that the bill sued on was accepted by Thomas J. Read, Son & Co.; whereas, the bill set out in the notary’s deposition does not appear to have been accepted at all.
    
      F. T. Grayson, on same side,
    Contended, that no authority was given by the statute of Louisiana, except to empower the deputy to make out protests and to give notices of protest, &c. In support of the position, that a deputy notary has no power or authority to make demand of payment of a bill of exchange or promissory note, I refer the court to the case of Carmichael v. The Bank of Pennsylvania, 4 How. R. 569, and authorities there cited.
    
      R. S. Holt, for appellees.
    1. It is too well established to admit of doubt, that the protest of a bill of exchange is to be made at the time, in the manner, and by the persons prescribed in the place where it is payable. Story on Confl. of Laws, 297.
    2. The act of Louisiana empowers each notary public in New Orleans to appoint one or more deputies “to assist him in the making of protests,” &c.
    To ascertain the legislative intention, and determine the extent of the power designed to be conferred by this language, it is necessary to refer to the causes which led to the enactment of the law, the necessity out of which it grew. “In the making of a protest,” a notary public performs several acts. He presents the instrument for acceptance or payment, demands its acceptance or payment, and then draws up in writing his protest, or the record of his official acts.
    In the commercial city of New Orleans, to which the act was confined, it was found impossible for a notary, without assistance, within business hours, to present for acceptance or payment all the bills or notes which might be placed in his hands, requiring presentation at points remote from each other.
    To obviate this difficulty was, as I conceive, the object intended to be accomplished by the act. The notary was not embarrassed by the number of bills or notes in his hands, either in noting them for protest, or in making out his notarial record. The first required but a moment’s time, and the second could be done afterward, and during a season of leisure. It was only in the on t-door business of presenting notes and bills, that he was embarrassed, and that his ability fell short of the demands of the public business; and it was to relieve him of the pressure of this portion of his official duty, and enlarge the capability of his office in this particular, that deputies were given to aid him.
    
      The construction of the act which confines the power of the deputy to the mere act of assisting in making out notarial records, is therefore, as we think, inadmissible.
    The comprehensive language in which their powers are conferred, and the manifest purpose for which the law was enacted, alike, forbid the adoption of such a construction.
   Mr. Justice Clayton

delivered the opinion of the court.

This was an action upon a bill of exchange, drawn at Louisville, and payable in New Orleans. Upon the trial, besides the protest of the notary, made upon a presentment, and demand made by his deputy, the deposition of the notary was offered in evidence to prove the giving of notice of the protest, which was objected to, on the ground, that, by the laws of Louisiana, a deputy notary public has no power or authority to present bills of exchange and demand payment.” The objection was overruled, and the correctness of this decision forms the only question in the cause.

The statute of Louisiana, under which the protest was made, was passed in 1844, and a certified copy is contained in the record. It provides, that it shall be lawful for each and every notary public in New Orleans to appoint one or more deputies to assist him in the making of protests and delivering of notices of protests of bills of exchange and promissory notes: provided that each notary shall be personally responsible for the acts of each deputy employed by him, and provided that each deputy shall take an oath faithfully to perform his duties as such, before the judge of the parish in which he may be appointed, and provided the certificate of notice or protest shall state by whom made or served.”

We have not been able to find any decision of the supreme court of that state, which places a construction upon this statute. But in regard to promissory notes, that court has decided, without reference to this statute, that “ a demand made by the clerk of a notary, to whom the note had been given for the purpose of making demand, and giving notice in case of dishonor, is sufficient. The notary has a right to appoint a substitute, for whose acts he is answerable: And where, in such case, the notice of non-payment was made out by the notary, and deposited in the post-office by the clerk, the notice will be good.” Follain v. Dupré, 11 Rob. La. R. 455. This court made a different decision in regard to the demand and notice in this state; yet there is no doubt that the laws of the place, where the bill or note is payable, must furnish the rule for the manner of making demand and protest. Ellis's Adm'r. v. Com. Bank of Natchez, 7 How. 303; Carter v. Union Bank, 7 Hump. 548.

As the court in Louisiana gave validity to the acts of the notary’s clerk in regard to promissory notes, without a statute, it is not an unwarrantable inference, that they would give the same effect to the same act in respect to foreign bills under the statute, already cited.

In Tennessee, the construction of this statute of Louisiana, passed under consideration, in regard to the validity of a protest made by the notary, upon a presentment made by his deputy. The court held that such protest was valid. Carter v. Union Bank, 7 Humph. 550.

The notarial certificate of protest is itself sufficient proof of the dishonor of the bill, without other evidence. Townsley v. Sumrall, 2 Peters, 170; Carter v. Union Bank, ut supra. The deposition in this case could only have been requisite to prove the notice. Under the statute, we think the protest was properly made, and the deposition rightfully admitted. The other objections to the testimony, which were not taken in the court below, will not be noticed here. Torrey v. Fisk, 10 S. & M. 596.

The judgment is affirmed.  