President of the People's Bank v. Brooke

Stewakt, J., delivered the opinion of the Court. The single inquiry presented by the two exceptions, in this case, is as to the sufficiency of the proof furnished by the notarial protest, to fasten liability upon the appellee as the endorser for the payment of the note, upon which this suit was instituted. The protest of the notary was the only evidence relied upon by the appellant to establish due demand of payment ¹⁰ of the note; its dishonor by the maker, and legal notice given to the appellee or the endorsee. That amounts to just as much proof as would have been the testimony of the notary, or any other credible witness, if he had been present at the trial, and testified to the same facts certified to in the protest.

It is prima fade evidence of the truth of its statements, and where the protest is exclusively relied upon, to prove the necessary facts to fix liability upon the parties to be affected, it must contain sufficient averments to them, that everything requisite has been done on the part of the holder of the note, or his agent, to authorize the demand upon the endorsee. The certificate of the notary in this instance, does not furnish the indispensable evidence of compliance with the conditions incident to the contract, to render the appellee as endorsee responsible for the payment of the note. “ The commercial law, which throughout all its departments inculcates the doctrine of reasonable diligence, and frowns upon and discourages laches, has introduced a rule of great strictness on this subject, which, although it may sometimes be found harsh in its practical operation, yet is, for the general purposes of business, highly useful to the commercial community, by introducing promptness, fidelity, and exactness, in the demand of payment.” Story on Pro. Notes, sec. 201. The sufficiency of the proof by the protest, according to the commercial law, is to be tested in its application to the case of an endorser.

According to the requirements of this law, the endorser contracts to be liable for the payment of the note in case of its dishonor, if it is duly presented for payment according to its terms, and due notice is given to him of its dishonor, and not otherwise. “The engagement of the endorser is conditional, and any neglect or laches of the holder, in not making due ¹¹ presentment, will discharge him.” Story on Pro. Notes, sec. 198. In order to charge the endorser, it is indispensable that the presentment of the note for payment