MR. JUSTICE GRIER delivered the opinion of the court. The plaintiffs declared against the defendant, as drawer of a bill of exchange, by the name and style of James Reid and Co., of which the following is a copy: No.. £4,417 14s. 11d. st'g. MOBILE, Sept. 9, 1850. Sixty days after sight of this first of exchange, (second and third unpaid), pay to the order of ourselves, in London, forty-four hundred and seventeen pounds, 14c. 11d. st'g, value received, and charge the same to the account of 1,058 bales of cotton per Windsor Castle.' Your obedient servants, Pr. pro. JAMES REID AND CO., WM. MOULT, Jr. To HY. GORE BOOTH, Esq., Liverpool. [Acceptance across the face of the bill:] Seventh October, 1850. Accepted for two thousand five hundred and seventyone pounds eighteen shillings and seven pence, being balance unaccepted for acet. 1,058 b. cotton, pr. Windsor Castle, payable at Glyn and Co. Pr. pro. HENRY GORE BOOTH. Due 9 Decem. [Indorsed:] AND. E. BYRNE. Pay MESSRS. A. DENNISTOUN AND Co., or order. 1 As to protest of inland bills and promissory notes, see Neg. Inst. L., § 189. See also Shaw v. McNeill, 95 N. C. 535, ante, p. 584. Protest is now neces sary in three cases: (1) foreign bills; (2) bills accepted for honor; and (3) bills containing a reference in case of need, if the holder desires to resort to the referee. Neg. Inst. L., § 286. Protest is proper, but not necessary, in two cases (1) inland bills and promissory notes; (2) for better security, § 266. The protest for non-payment after protest for non-acceptance is anomalous; it may be necessary to meet the requirements of foreign law, § 265.-H. After reading this bill, with its indorsements, the plaintiff offered in evidence a regular protest, indorsed on a copy of a bill agreeing in every particular with the above, except that for " And. E. Byrne was written "Chas. Byrne." The defendant objected to the reading of the protest in evidence, because it did not describe the bill of exchange produced by the plaintiffs, but a different bill. The court sustained this objection, and excluded the protest from the jury, which is the subject of the first bill of exceptions. A protest is necessary by the custom of merchants in case of a foreign bill, in order to charge the drawer. It is defined to be in form "a solemn declaration written by the notary under a fair copy of the bill, stating that the payment or acceptance has been demanded and refused, the reason, if any, assigned, and that the bill is, therefore, protested." A copy of the bill, it is said, should be prefixed to all protests, with the indorsements transcribed verbatim. (1 Pardess. 444; Chitty on Bills, 458.) However stringent the law concerning mercantile paper, with regard to protest, demand, and notice, may appear, it is nevertheless founded on reason and the necessities of trade. It exacts nothing harsh, unjust, or unreasonable. A protest, though necessary, need only be noted on the day on which payment was refused. It may be drawn and completed at any time before the commencement of the suit, or even before the trial, and consequently may be amended according to the truth, if any mistake has been made.2 The copy of the bill is connected with the instrument certifying the formal demand by the public officer, as the easiest and best mode of identifying it with the original. Mercantile paper is generally brief, and without the verbiage which extends and enlarges more formal legal instruments. Hence, it is much easier to give a literal copy of such bills, than to attempt to identify them by any abbreviation or description. The amount, the date, the parties, and the conditions of the bill, form the substance of every such instrument. Slight mistakes, or variances of letters, or even words, when the substance is retained, cannot and ought not to vitiate the protest. A lost bill may be protested, when the notary has been furnished with a sufficient description, as to date, amount, parties, etc., to identify it. In indictments for forgery, it is not sufficient to state the "substance and effect" of the instrument; it must be laid according to the "tenor," or exact letter; but the law merchant demands no such stringency of construction. The sharp criticism indulged when 2 See § 263.-H. the life of a prisoner is in jeopardy cannot be allowed for the purpose of eluding the payment of just debts. 3 The object of notice is to payment has been refused Hence, such a description It is unnecessary that a copy of the protest should be included in the notice to the drawer and indorsers. inform the party to whom it is sent that by the maker, and that he is held liable. of the note as will give sufficient information to identify it, is all that is necessary. What was said by Mr. Justice Story, in delivering the opinion of this court, in Mills v. The Bank of the United States,* with regard to variances and mistakes in notices, will equally apply to protests: "It cannot be for a moment maintained that every variance, however immaterial, is fatal. It must be such a variance as conveys no sufficient knowledge to the party of the particular note which has been dishonored. If it does not mislead him, if it conveys to him the real fact, without any doubt, the variance cannot be material, either to guard his rights or avoid his responsibility." In the case before us, the protest had an accurate copy of every material fact which could identify the bill the date, the place where drawn, the amount, the merchandise on which it was drawn, the ship by which it was sent, the balance on the cotton for which it was accepted, the names of drawers, acceptor, indorsers; in fine, everything necessary to identify the bill. The only variance is a mistake in copying or deciphering the abbreviations and flourishes with which the christian name of the acceptor's agent is enveloped. The abbreviation of "And." has been mistaken for Chas., and the middle letter E. omitted. The omission of the middle letter would not vitiate a declaration or indictment. Nor could the mistake mislead any person as to the identity of the instrument described. We are of opinion, therefore, that the objection made to this protest, "that it does not describe the bill of exchange produced, but a different bill," is not true in fact, and should have been overruled by the court. This renders it unnecessary for us to notice the offer of testimony to prove the identity, which was also overruled by the court. The judgment of the Circuit Court is reversed, and venire de novo awarded. 3 Nor even mention of protest. Ex parte Lowenthal, L. R. 9 Ch. 591. Nor is the certificate of protest evidence of notice, except by statute. Bank v. Gray, 2 Hill (N. Y.) 227, ante, p. 589.-H. 4 Ante, p. 539.- H. $261 ASSUMPSIT. CAYUGA COUNTY BANK v. HUNT. 2 HILL (N. Y.) 635.-1842. The action was by the plaintiffs as indorsees against the defendant as indorser of a bill of exchange drawn by James Treat on Stephen Sicard & Co., New York, and accepted by them. The bill, which bore date January 16th, 1839, was payable to the order of the defendant at ninety days; and no place of payment was mentioned therein. On the trial, after proving the signature of the defendant as indorser, the plaintiffs gave in evidence a notarial certificate of protest, stating that on the 19th day of April, 1839, the notary presented the bill in question at No. 4 Wall street, the office of the acceptors, but found the same closed and no person there of whom payment could be demanded; that he then presented the same to the widow of Stephen Sicard, for payment, which she refused, saying that the partner of her late husband was at the South, and she knew nothing of it. The plaintiffs also read in evidence a notarial certificate, stating that notice of protest of the bill in question had been duly given to the defendant. This certificate was dated February 9th, 1841, nearly two years after presentment and protest. No further evidence was offered by the plaintiffs. The defendant's counsel moved for a nonsuit, on the ground, 1. That the presentment of the bill in question to the widow of Stephen Sicard, deceased, was insufficient to charge the indorser; 2. That it did not appear from the certificate of protest that the bill was presented for payment to any person at the office of S. Sicard & Co., or that the notary called for that purpose during office hours; and 3. That the certificate of notice of protest was not given till nearly two years after protest was made. The judge denied the motion, and the defendant excepted. By the Court, COWEN, J.-The bill of exchange was payable generally, mentioning no place. The drawees were Stephen Sicard & Co., who accepted the bill as a firm, thus becoming joint debtors. On the death of Sicard, he was discharged at law, the liability developing on the surviving partner (Story on Partn., § 361, 362), to whom alone the plaintiffs were bound to have the bill presented for payment. The mode, therefore, in which the bill was presented to the widow and supposed personal representative of Sicard, or whether she were in fact his representative, becomes entirely unimportant. No objection was made at the trial that the presentment, which was at No. 4 Wall street, where the survivor transacted business, should have been at his residence or any other place. Therefore the question on the place of presentment does not arise. It must be Nor was the manner of presentment taken to have been proper. denied to be proper; nor the day. But it is objected that the time of day should have been mentioned in the notary's certificate; for perhaps it might have been after the hours of rest. The certificate states that it was presented on the third day of grace. This, coming from a witness on the stand, would be deemed prima facie evidence of presentment at a proper time in the day; and if an improper hour were in truth selected, it would lie with the adverse party to show the fact by cross-examination or otherwise. It would not be intended that a late hour was resorted to. We think, therefore, that the certificate, in fair construction, imports a presentment during the proper hours of business. These, except where the paper is due from a bank, generally range through the whole day down to bed-time in the evening. (Chitty on Bills, 421 [r.], Am. ed. 1839, and cases there cited.) It would be quite a forced presumption on the words of an officer saying he presented on such a day, to fix the hour either before or after that when business is usually transacted. It would be to suppose the notary, at the expense of his own convenience, going at an improper hour for the mere sake of doing wrong." It is no objection that the certificate of notice was drawn up by the notary two years, or any other length of time, after notice was given. The statute gives it as a substitute for his personal testimony at the trial. It is properly called for and may be drawn up when it happens to be wanted as evidence. The notary cannot be expected always to prepare it as a matter of course; for non constat it may ever be wanted. It was said on the argument, that ordinarily it is drawn up and transmitted to the holder at or about the time when the business is done. That is the better practice; but it is not essential. [Omitting a question of usury.] New trial denied. "Went with the draft to the bank and demanded payment," is sufficient. Bank v. Cameron, 7 Barb. (N. Y.) 143. "Went with the note and made demand at maker's office and person in charge answered, 'No funds,'" is sufficient. The maker is entitled to have the note exhibited, yet if he does not ask to see it, and refuses payment on other grounds, the presentment is sufficient. Legg v. Vinal, 165 Mass. 555. 66 A certificate that the notary presented the draft to one of the firm of Warren, Clark & Co.," is insufficient for not stating the name of the person on whom demand was made. Otsego Co. Bank v. Warren, 18 Barb. (N. Y.) 290.-H. |