
    Atwater and another v. Streets and another.
    It is not necessary that a copy of the protest of a foreign bill should accompany the notice of its dishonor.
    Question reserved and certified from Berrien Circuit Court. Assumpsit against the defendants as endorsers of a bill of exchange for $200, drawn in this state, upon a person residing in the state of New York, and payable at the Bank of Buffalo, in that state. Plea, non-assumpsit.
    On the trial of the cause, the plaintiffs read in evidence the certificate of a notary public, under his notarial seal, of the presentment, protest, and notice of dishonor of the bill; but did not prove that any copy of the protest was sent, with the notice, to the defendants. A verdict was found for the plaintiffs, for the amount of the bill. After-wards, the defendants moved to set aside the verdict, and for a new trial, and the Presiding Judge reserved for the determination of this Court, the question, arising upon the motion, of whether, in such a case, it was necessary that a copy of the protest should be sent to the endorsers, with the notice of dishonor.
    
      Green Sf Dana, for the plaintiffs.
    
      N. Bacon, for the defendants.
   Felch, J.

delivered the opinion of the Court.

Under the decisions of the Supreme Court of the United States, the bill of exchange declared on, must be considered a foreign bill. Townley v. Sumrall, 2 Pet. R. 179.

A protest of such a bill is necessary to charge the endorser; and such protest must be proved at the trial. Notice of the dishonor of the bill must also be given to the enclorser; but must the notice be accompanied with a copy of the protest?

Notice of the due presentment of the bill, and refusal of payment, is, in general, sufficient; but when the endorser is abroad, or out of England, the English authorities require something more to be done. The rule there laid down does not, however, go so far as to require a copy of the protest to accompany the notice. Thus, the rule is stated in Chitty on Bills, 498, to be, in such case, that a copy of the protest, or some other memorial must, within a reasonable time, be sent, with a letter of advice or notice of dishonor, to the person sought to be charged. And, in Bailey on Bills, 259, 4th ed. it is said that in some cases a copy or some other memorial of the protest should accompany the notice. No English case is found which decides that such copy is indispensable; while, in Goodman v. Harvey, 4 Adol. & Ellis, 870, the question was directly raised, and the objection for the want of such copy, overruled.

In Thompson on Bills, 505, 506, and 507, as cited in a note in 10 Mass. R. 5, the English and Scotch rule is clearly and concisely stated thus : “ It is not now held necessary that notice should be accompanied by the bill, or by the principal, or a copy of the protest, even in the case of a foreign bill. It does not even seem requisite to mention that there has been a protest, when the person receiving the notice is in this country at the time of the dishonor; as he may, in that case, ascertain this fact, although it should not be notified to him. But if he is abroad, the fact of a protest having been taken, ought to be mentioned in the notice, since he cannot otherwise be supposed to be aware of it. If he afterwards require a copy of the protest, it must be sent to him.”

In this country, the question has several times been the subject of remarks by elementary writers, and of adjudication by courts of law. Chancellor Kent, in his Commentaries, 3d vol. 109, expressly declares that no copy need accompany the notice. In Lenox v. Leverett, 10 Mass. R. 1, it was held that the protest need not be sent with the notice. So, also, in Wallace v. Agry, 4 Mason’s R. 336, neither the protest nor a copy of it was deemed necessary. So in Wells v. Whitehead, 15 Wend. R. 527. These adjudications were each upon a state of facts as to residence, similar to the case before us. And, in Story on Bills, 339, it is laid down as settled law in this country, that the notice need not be accompanied by a copy of the protest; it is sufficient for the notice to state that the bill has been protested, and to produce the protest at the trial.

The question reserved must, then, be answered in the negative; and so it must be certified to the Court below.

Certified accordingly.  