
    David Barbour v. Jerome Bayon.
    A bank check Wlien payable to order is negotiable, and the endorser is liable, not as a mere transferee, but as the endorser of a bill of exchange*
    Bank checks are not entitled to days of grace, being payable immediately on presentment.
    
      APPEAL from the Fifth District Court of New Orleans, Buchanan, J. C.
    
    
      Roselius, for plaintiff,
    contended: This suit is brought against the defendant as the endorser of a check, payable to his order, on the Mechanics and Traders’ Bank. The presentment, demand of payment, protest, and notice of the dishonor of the check were proved, not only by the notarial protest and certificate of notice, but by the testimony of the person by whom the demand of payment had been made ; and the notice of the refusal to pay for want of funds was given to the defendant in person. There is no defence whatever in the case, and this appeal cannot have been taken for any other purpose than delay. The judgment of the district court should therefore be affirmed, with ten per cent damages as for a frivolous appeal.
    
      T. A. Bartlette, for defendant,
    contended: This is an action against the drawer and endorser of a bank check. Plaintiff avers presentment, non-payment and notice to the endorser. The endorser pleaded the general issue; and on judgment being rendered against him, he appealed.
    The first question that arises is: what was the nature of the obligation of the endorser of the check? We urge that he incurred no liability. That bank checks like that sued on are drawn and taken on the supposition that the drawer has funds in bank to meet'them; that the credit is given to the drawer alone; that in receiving such checks, the endorsement is not considered as having any other effect than as an assignment of the check. The endorser is the transferrer of the right which the check gives to receive so much money. He warrants nothing but the existence of that right; not the solvency of the bank nor of the drawer. C. C. articles 2616, 2617. If the endorser be liable in case the check be dishonored on due presentment and notice, such liability must rest on the similarity of checks with bills of exchange. The consideration of this brings us to another question, as to presentment and notice of dishonor.
    If the endorser is to be held liable by the rules applicable to bills of exchange, those rules must be adhered to throughout the case. The check then was entitled to grace and could be protested only at the expiration of the three days. Brown v. Lusk, 4YergerRep. 210. Marker v. Anderson, 21 Wendell 372, The check sued on is dated October 5th, 1849, and it is alleged was presented and protested for non-payment the same day.
    We next come to the consideration of the alleged presentment, protest, notice, See. The act of protest and certificate of notice offered in evidence by the plaintiff are clothed with all the forms of law, and if they are what they profess to be, would be conclusive. But they are completely destroyed by the testimony adduced. Two witnesses state that on the 8th or 10th of December, 1849, after the institution of this suit, and two months after the alleged protest, they went to the office of the notary and saw the original act of protest; that it was not then even signed by the notary, and by only one witness. It is admitted that the signatures of the witnesses to the protest and certificate offered in evidence were affixed after the institution of the suit. The demand on which the protest was made, not by the notary, but by his clerk. So we see that there was no protest, notwithstanding the notary’s certificate. To enable the notary to protest, he must make the demand himself, or by his lawful deputy. The demand in this case was not by a deputy, but by a clerk. To be a protest it must be recorded and signed by the notary and witnesses. This was not recorded nor signed at the time it purports to have been made. If there was no protest there could not be any notice of protest. So the case stands precisely as if the notary protest and notice of protest had never been heard of. Acts of 1821, 1827, concerning protests and notice. 17 L. R. 479. 19 L. R. 447. 1 R. R. 66. 6 R. R. 276. 1st Ann. 95. 3d Ann. 121.
    Now Jet us see what is the evidence of presentment, and notice of non-payment, beyond the protest. Duplantier says he presented the check, that it was not paid, and the next day he gave a written notice of protest to Bayon, but did not tell him the check had been dishonored? He does not even say what the written notice contained. There is no attempt made to show what that notice contained. The endorser was entitled to notice of the presentment and nonpayment. To make the notice good where in case of protest, it must set forth in terms sufficiently clear to inform the party what had been presented, giving the names of the drawer, endorsers, &c. 12 L. R. 467.
    To recapitulate : 1st. The endorser is only liable as transferrer, and did not guarantee the solvency of the parties to the check. 2d. If the endorser were liable in case of proper presentment and notice of dishonor, he is released in consequence of the check not having been presented on the last day of grace. 3d. There was no demand by the notary, nor lawful deputy. 4th. There was no protest recorded and signed by the notary and witnesses at the time of its date. 5th. There was no description of the instrument protested in the notice given. 6th. The certificate of the notary as to the manner of giving notice was not recorded and signed by the notary and witnesses on the day of its date. 7th. There was no notice given to the endorser of the presentment by the witness Duplantier, and failure to pay.
   The judgment of the court was pronounced by

Slidell, J.

Bayon is appellant from a judgment rendered against him as endorserof a check in these words: “New Orleans, October 5th, 1849. Cashier of Mechanics and Traders’ Bank will pay to the order of Jerome Bayon, Esq., five hundred and seventy-eight dollar’s sixty-six cents.

(Endorsed,) J. Baton. (Signed,) H. Rodriguez.”

The check was presented at the bank and protested on the day of its date, and Bayon was notified personally the next day. Although not identical with a bill of exchange, a check on a bank is in many respects governed by the same rules. When payable to order it is negotiable by endorsement; and Bayon is clearly liable as endorser, and not as a mere transferrer. It appears that the notarial record of notice was not regularly made. But this is immaterial, ■ it being proved by parol that Bayon was duly notified. It is well settled that an instrument of this sort is not entitled to days of grace. It is payable immediately on presentment.

Judgment affirmed,, with costs.  