and ought to suffer for his negligence rather than the drawer. This was the ground on which the case of Blesard v. Hirst was determined. But such is not the present case, where the bill, in its unaccepted state, has passed into the hands of a bona fide indorsee to whom no laches is imputable. Upon the principle already laid down, the drawer, in such a case, holds out to the indorsee that the bill will be accepted and paid; and if this fails, ought he not to suffer rather than the indorsee who hath no knowledge whatever that the bill has been dishonored? The case of Roscow v. Hardy 10 differs from this, because there the plaintiff took up the bill of his own wrong, after the holder by his laches had discharged the drawer and prior indorsers, and therefore it was properly holden, that the plaintiff could not recover against a prior indorser. The greater part of the learned counsel's argument would apply to the case of a stolen bill, where the felon has indorsed it to a bona fide holder; but what says the law in such case? Not that the indorsee takes the bill on the individual credit of the felon, so that he must stand or fall by the felon's title, but that he shall recover on his own title, seeing that he might take the bill on the credit of all the names which appear on the bill. Usury and gaming considerations render the bill void in its original formation. I remember the case in Douglas11, where the court reluctantly yielded to that doctrine. This is not the case of a void bill; the indorsee is chargeable with no negligence, and I, therefore, think that the drawer is still liable.

Judgment affirmed.

V. Duties of holder: protest.

189

§ 189

SUSSEX BANK v. BALDWIN. 12

[Reported herein at p. 480.]

BANK OF ROCHESTER v. GRAY.

2 HILL (N. Y.) 227.— 1842.

ACTION against indorser. Defense, want of notice. The bill was drawn in Rochester, N. Y., payable in Boston, Mass. It was presented by a notary in Boston and on dishonor a certificate of protest was

10 12 East, 434. — C.

11 See Lowe v. Waller, Doug. 736.

12 When protest is necessary, the protest fees may be recovered as damages. Morgan v. Reintzel, 7 Cranch (U. S.) 273; Ticknor v. Branch Bank, 3 Ala. 135. Where protest is useless, protest fees cannot be recovered. German v. Ritchie, 9 Kans. 106; Wooley v. Van Valkenburgh, 16 Kans. 20; Waddell's Succession, 44 La. Ann. 361. Where protest is proper, but not necessary, as where it is authorized by statute in case of dishonor of an inland bill or a promissory note, protest fees may be recovered. Legg v. Vinal, 165 Mass. 555; Merritt v. Benton, 10 Wend. (N. Y.) 117; 2 Daniel on Neg. Inst., § 933. Contra: Johnson v. Bank, 29 Ga. 260; 1 Parsons N. & B. 646. H.

drawn up in due form, stating, among other things, that the notary transmitted notice of dishonor to the drawer and indorsers, etc. This certificate was the only proof of notice of dishonor offered by plaintiff.

By the Court, CowEN, J. [After deciding that a notarial seal stamped directly upon the paper, without the use of a wafer, is not a good common-law seal]. Suppose the protest had been duly authenticated, was the addition of a certificate stating notice of protest to the defendant admissible? It was said to be evidence by Johnson, J., in Cape Fear Bank v. Stinemetz (1 Hill's Law Rep. S. Car. 45); and what I said in Halliday v. McDougall (20 Wend. 85), is now relied upon, and perhaps rightly, as intimating an impression that he was right. The point decided in the last case was, however, that the giving of notice being the usual, not official duty of the foreign notary, and he being dead, the entry in his official record of notice being sent might be received by way of memorandum as secondary evidence. I admitted that it might not be his official business; and instituted no particular examination whether it was or not. The learned counsel for the plaintiffs has not been able to furnish anything more than what I have there mentioned, going to support the notary's certificate as evidence of notice. I have been equally unsuccessful after considerable search. On the contrary, I find it expressly asserted in Brooke's Office of Notary (pp. 79 and 139), that the giving of notice is no part of his province or duty as notary. In the late case of Fitler v. Morris (6 Whart. 406, 415, March T. 1841), this very question was a good deal considered by the Supreme Court of Pennsylvania; and they held, that though by the local law of that state, the giving of notice is a notarial act, and on that ground proveable by his certificate, yet this is an exception to the common law. They therefore refused to receive a notarial certificate made in Alabama, as evidence of notice, or anything beyond the presentment and non-acceptance. I am entirely satisfied that such is the law of England and this state.

It is scarcely necessary to observe, that our statute (Sess. 56, p. 395),13 relative to proof of notice by certificate, applies to none other than notaries of this state. 1

There must be a new trial; the costs to abide the event.

New trial granted. 2

13 L. 1833, c. 271, § 8. Re-enacted in substance in N. Y. Code Civ. Proc. § 923.-H.

1 It is now provided (Code Civ. Proc. § 925), that proof of dishonor, and notice of dishonor, of an instrument payable in another state or country, may be made in any manner authorized by the law of the state or country where it is payable. McAndrew v. Radway, 34 N. Y. 511; Lawson v. Pinckney, 40 N. Y. Super. Ct. 187.- H.

2 A notarial certificate is not competent proof of service of notice in the absence of statute. Real Estate Bank v. Bizzell, 4 Ark. 189; Rives v. Parmley, 18 Ala. 256; Schneider v. Cochrane, 9 La. Ann. 235: Schorr v. Woodlief, 23 La. Ann. 473; Swayze v. Britton, 17 Kans. 625. Statutes now generally

ACTION against the maker on a lost or stolen promissory note payable to A, the bearer, on or before Jan. 6, 1868. Defense, payment to the holder (Thompson) on Oct. 11, 1866. Judgment for plaintiff. DAY, J. The defendant asked the court to instruct the

jury as follows:

"12. The note in controversy was payable on or before a certain date. This made the note payable at a fixed time absolutely, and sooner if defendant saw fit to pay it sooner. Such were the express terms of the contract, and, therefore, no presumption of bad faith can arise from the simple fact that defendant paid when he did, though by its terms payment could not have been demanded or enforced at the time. Defendant had the right to pay whenever he chose to do

BO. "

The court refused this instruction, and gave the following:

"8. A promissory note, payable on or before two years after date, is due at the end of two years and not before; the rule of law being that the note becomes due at the time when the payee or legal holder or owner of the same has the right to demand payment, and this is true, although the note provides that the payor may at his option pay the same before the time fixed when it shall absolutely become due. "

"9. The payment of a note by the payor before it becomes due, to a stranger who may have possession of the note, will not protect and discharge the maker, if said note has been stolen, or otherwise surreptitiously comes into the hands of the party presenting the same. Other instructions given embrace the same doctrine.

make a notarial certificate prima facie evidence of the giving of notice. As to these statutes and their construction, see 4 Am. & Eng. Encyc. Law (2nd ed.), pp. 389-393. Where a notary's certificate may include a certificate of notice of dishonor, such certificate of notice may be written below the body of the certificate and even below the seal. Olcott v. Tioga R. Co., 27 N. Y. 546; Jordan v. Long, 109 Ala. 414.- H.

There was error in giving these instructions, and in refusing that asked. The note was payable to the bearer, and there is a presumption that the person in possession of it, and who presented it for payment, was the owner. It has been declared in general terms, that the "ayment of a note which has been lost or stolen, before it is due, does not discharge the maker from liability to the real owner, because the payment is out of the ordinary course of business. (2 Parsons on Notes and Bills, 255, and cases cited.)1

But the note in question, by its express provisions, at the option of the maker, is payable at any time within two years from its date. Whilst the holder could not enforce payment before January 6, 1868, yet the maker might claim the right to make payment before that time. It cannot be said to be out of the ordinary course of business for the maker to insist upon a provision which was incorporated for his benefit. No presumption against the bona fides of the defendant can arise from the time of making payment.

The defendant asked the court to instruct in substance that, if Burton paid the note to Thompson in good faith, Thompson being in possession of it, and believing him to be the owner, without actual notice or knowledge that it was stolen, then Burton was protected by such payment, and that mere suspicion on Burton's part as to Thompson's right to demand payment or negligence in making inquiries was not enough to invalidate payment; but to do so, it must appear that Burton had acted in bad faith. The court refused this instruction, and in substance directed that a payment made under circumstances that would put a reasonably prudent man upon inquiry as to Thompson's right to receive payment would not protect nor discharge defendant.

This action was erroneous. Mere suspicion that a person in possession of a note payable to bearer may not be the owner, will not exonerate the maker from payment; but there must be circumstances amounting to clear proof that he is a fraudulent holder. 2 (Story on Prom. Notes, § 613, and cases cited; Gage v. Sharp, 24 Iowa, 15; Lake v. Reed, 29 Id. 258; Goodman v. Simonds, 20 How. 343; 1 Parsons on Notes and Bills, 238; 2 Id. 212, 279.) For the errors discussed, the judgment is

Reversed. 3

1 Disapproved in Bainbridge v. City of Louisville, 83 Ky. 285. — H.

2 See § 95.— H.

3 See § 148. Cf. Buehler v. McCormick, 169 Ill. 269. If an instrument is paid before maturity and a cancellation legend stamped upon it, and it is afterwards stolen, the cancellation mark effaced, and the instrument put into circulation, a purchaser for value without notice cannot recover on it against the maker. District of Columbia v. Cornell, 130 U. S. 655. [Distinguished in Ehrlich v. Jennings, 78 S. C. 269.-C.J

If a negotiable instrument is lost or stolen and the true owner duly notifies the maker, the latter must, at his peril, make sure that a subsequent payment

$ 200

AGAWAM NATIONAL BANK v. DOWNING.

169 MASSACHUSETTS, 297. — 1897.

ACTION against Edward B. Downing as maker of a note. After the note matured, plaintiff took a new note for $450 from the indorser, William B. Downing, which included the amount of the note in suit and another note of $200 given by X. Plaintiff retained possession of

the note in suit and said note of $200.

MORTON, J. The defendant is the maker of the note in suit. As between him and William B. Downing, the indorser, it was an accommodation note. But there is nothing to show that this was known to the plaintiff, or that it took the note otherwise than in good faith and for value. Whether the $450 note operated as payment of it was a question of fact depending on the intention of the parties, and the other circumstances surrounding the transaction. (Brigham v. Lally, 130 Mass. 485; Dodge v. Emerson, 131 Mass. 467; Green v. Russell, 132 Mass. 536; Eames v. Cushman, 135 Mass. 573; Woods v. Woods, 127 Mass. 141; Cotton v. Bank, 145 Mass. 45, 12 N. E. 850.) The court must have found that it did not, and its finding is conclusive. (Brigham v. Lally, supra.) There was nothing, we think, in the arrangement between the plaintiff and William B. Downing that operated to release the defendant. His liability to the plaintiff was an absolute one. Delay on its part to enforce payment, from whatever motive, or however long continued, if not for six years, would not release him. We do not see that the case is altered because the delay was at the request of the indorser, and accompanied by an agreement between the plaintiff and him that the defendant's overdue note should be regarded as security for the new note given by William B. Downing. Exceptions overruled."

is to a holder in due course. Bainbridge v. City of Louisville, 83 Ky. 285; Chappelear v. Martin, 45 Oh. St. 126.

If payment be made to one who has not the possession of the instrument, it is at the peril of the payor. Wheeler v. Guild, 20 Pick. (Mass.) 545. So also, it seems, if the one to whom payment is made does not actually produce the instrument. Murphy v. Barnard, 162 Mass. 72. See also Wilcox v. Aultman, 64 Ga. 544; University Bank v. Tuck, 96 Ga. 465. If the instrument is indorsed in full, payment to any one except the indorsee (even to one in possession of the instrument) is at the peril of the payor. Doubleday v. Kress, 50 N. Y. 410. — H.

4 Whether a renewal note is taken in payment of the former note, or merely in extension of the obligation of the former note, is a question of the intention of the parties. Matter of Utica National Brewing Co., 154 N. Y. 268.-H.