816. In Tennessee, Stump v. Napier, 2 Yerg. 35 (maker). In New Hampshire, Haines v. Dennett, 11 N. H. 180 (co-maker). In Vermont, at one time, Nichols v. Holgate, 2 Aik. 138 • (maker). But see Chandler v. Mason, 2 Vt. 193. In Missouri, Bank of Missouri v. Hull, 7 Mo. 273 (maker). The contrary rule prevails, or has prevailed, in Ohio. Freon v. Brown, 14 Ohio, 482. And, perhaps, in Mississippi and Iowa. Drake v. Henley, Walker, 541; Strang v. Wilson, Morris, 84. An intermediate doctrine prevails in Massachusetts, and in some other States, perhaps. Walton v. Shelley was at an early date adopted in Churchill v. Suter, 4 Mass. 156; and the court has found it difficult to break away altogether from that case. Thayer v. Crossman, 1 Met. 416. But in the authority last cited, the old rule was decided not to apply to a case in which the plaintiff had taken the paper when overdue. And it has since been declared that the law of Massachusetts is that an indorser is competent to impeach the paper whenever the plaintiff stands only upon the rights of the payee. Newell v. Holton, 10 Gray, 349; Fox v. Whitney, 16 Mass. 118; Van Shaack v. Stafford, 12 Pick. 565; Thayer v. Crossman, supra; Bubier v. Pulsifer, 4 Gray, 592. See also Pine v. Smith, 11 Gray, 41; Fish v. French, 15 Gray, 520. It may be inferred that the same rule prevails in Maine. Clapp v. Hanson, 15 Maine, 345. And it is to be added that the Massachusetts rule has recently been adopted by the Supreme Court of the United States, so far as it goes. Davis v. Brown, 94 U. S. 423, adopting the rule in Fox v. Whitney, 16 Mass. 118, and holding an indorser incompetent only when he put the paper into circulation before its maturity. Whether the court would go further, and follow Townsend v. Bush, does not appear. The strictest of the cases appear to go only to the extent of denying the party's competency to impeach the paper. The most important ground of exclusion is, that one who has given or helped to give currency to a note or bill should not be permitted to destroy that result. Walton v. Shelley, 1 T. R. 296; Jordaine v. Lashbrooke, 7 T. R. 601; Thayer v. Crossman, 1 Met. 416; Townsend v. Bush, ante, p. 150. Evidence in support of the paper would seem not to be affected by this objection. Such evidence as to facts subsequent to the execution of a note, to wit, the time and circumstances of the witness's indorsement, was held admissible in Strang v. Wilson, Morris, 84. Indeed, there has never been any serious doubt of the competency of an indorser, divested of interest, to prove facts arising after the execution of a note, bill, or check, whether to impeach or to fortify a right of action thereon. Woodhull v. Holmes, 10 Johns. 231; Skilding v. Warren, 15 Johns. 270; Strang v. Wilson, supra; Drake v. Henley, Walker (Miss.), 541. The competency of the indorser, it seems, would also apply as between indorser and immediate indorsee, or one standing in the shoes of an immediate indorsee. What is said in Townsend v. Bush, and in other cases, as to the effect of indorsement, regardless of the question of public policy, relates only to the question whether the indorser has been fully divested of interest in the matter at issue, a question which is now generally obsolete. - of a bill or note; and this is well settled. See cases infra. Demand and notice were alleged to have been "duly" attended to; which was probably understood to mean that those steps were taken in the same manner, and at the same time, as are required in the case of a bill or note. The court merely decided that this was sufficient to charge the defendant indorser as such. It was not decided whether the defendant would have been liable had not demand been made within the time (prima facie) required in the case of a bill. Mr. Justice Byles was careful, however, to notice the well-established distinction (elsewhere stated, ante, pp. 116, 117) between checks and bills, that the drawer is not discharged by failure to make demand within the time allowed upon bills, unless he has been prejudiced thereby. But the courts of this country have refused to apply the rule governing the liability of the drawer to the engagement of the indorser. As to the indorser, it has been distinctly held that the question of liability depends upon due diligence alone. "Whether he has been prejudiced or not by the delay is perfectly immaterial." Gough v. Staats, 13 Wend. 549, 553. See also Mohawk Bank v. Broderick, 10 Wend. 304, affirmed, 13 Wend. 133; Smith v. Miller, 43 N. Y. 171 (explained ante, p. 118); Veazie Bank v. Winn, 40 Maine, 60. These cases put the engagement of the indorser of a check upon the same footing with that of an indorser of a bill or note. The time of presentment and notice will be considered in another note. The only question at present is one of classification, to wit: Is the engagement of an indorser of a check to be classed with that of the drawer of such paper, or with that of indorsers of bills and notes ? PRESENTMENT AND DEMAND. MICHAEL MUSSON and GEORGE O. HALL, surviving partners of WILLIAM NOLL v. WILLIAM A. LAKE. (4 Howard, 262. Supreme Court of the United States, December, 1845.) Necessity of presentment. — The notary should present the paper when he demands payment; and this rule has not been changed by statute in Louisiana. Even if it had been there changed, as the defendant's contract was to be performed in Mississippi where the law merchant prevails in this particular, presentment could not be dispensed with. Protest, how far evidence. - A protest which only states that payment was demanded is not evidence to prove presentment. THE case is stated in the opinion of the court. M'KINLEY, J. The plaintiffs brought an action of assumpsit, in the Circuit Court of the United States for the Southern District of Mississippi, against the defendant, as indorser of a bill of exchange, drawn at Vicksburg, in said State, by Steele, Jenkins, & Co., for $6,133, payable twelve months after the first day of February, 1837, to R. H. and J. H. Crump; and addressed to Kirkman, Rosser, & Co., at New Orleans, and by them afterwards accepted, and indorsed by the payees and the defendant. On the trial of the cause, the plaintiffs offered to read as evidence to the jury a protest of the bill of exchange, to the reading of which the defendant objected; because it did not appear in the protest that the notary had presented the bill to the acceptors, or either of them, when he demanded pay ment thereof. And upon the question, whether the protest ought to be read to the jury as evidence of a presentment of the bill to the acceptors for payment, or as evidence of the dishonor of the bill, the judges were opposed in opinion: which division of opinion they ordered to be certified to this court; and upon that certificate the question is now before us for determination. The indorser of a bill of exchange, whether payable after date or after sight, undertakes that the drawee will pay it, if the holder present it to him at maturity and demand payment; and if he refuse to pay it, and the holder cause it to be protested, and due notice to be given to the indorser, then he promises to pay it. All these conditions enter into and make part of the contract between these parties to a foreign bill of exchange; and the law imposes the performance of them upon the holder, as conditions precedent to the liability of the indorser of the bill. A presentment to and demand of payment must be made of the acceptor personally, at his place of business or his dwelling. Story, Bills, § 325. Bankruptcy, insolvency, or even the death of the acceptor will not excuse the neglect to make due presentment; and in the latter case it should be made to the personal representatives of the deceased. Chitty, Bills, 7th London ed. 246, 247; Story, Bills, 360; 5 Taunt. 30; 12 Wend. 439; 2 Douglass, 515; Warrington v. Furbor, 8 East, 242, 245; Esdaile v. Sowerby, 11 East, 117; 14 East, 500. The reasons why presentment should be made to the drawee are, first, that he may judge of the genuineness of the bill; secondly, of the right of the holder to receive the contents; and, thirdly, that he may obtain immediate possession of the bill upon paying the amount. And the acceptor has a right to see that the person demanding payment has a right to receive it, before he is bound to answer whether he will pay it or not; for, notwithstanding his acceptance, it may have passed into other hands before its maturity. And he, as well as the drawee, has a right to the possession of the bill upon paying it, to be used as a voucher in the settlement of accounts with the drawer. Story, Bills, § 361; Hansard v. Robinson, 7 Barn. & C. 90. Mr. Justice Story has given the form of a protest now in use in England, in his treatise on Bills of Exchange, by which it will be seen that the words "did exhibit said bill" are used, and a blank is left to be filled up with "the presentment, and to whom made, and the reason, if assigned, for non-payment." Story, Bills, 302, note. This, with the authorities already referred to, shows that the 'protest should set forth the presentment of the bill, the demand of payment, and the answer of the drawee or acceptor. The holder of the bill is the proper person to make the presentment of it for payment or acceptance. Story, Bills, § 360. But the law makes the notary his agent for the purpose of presenting the bill, and doing whatever the holder is bound to do to fix the liability of the indorser. Every thing, therefore, that he does in the performance of this duty must appear distinctly in his protest. He is the officer of a foreign government; the proceeding is ex parte; and the evidence contained in the protest is credited in all foreign courts. Chitty, Bills, 215; Rogers v. Stevens, 2 T. R. 713; Brough v. Parkings, 2 Ld. Raym. 993; Orr v. Maginnis, 7 East, 359; Chesmer v. Noyes, 4 Camp. 129. The evidence contained in the protest must, therefore, stand or fall upon its own merits. It rests upon the same footing with parol evidence; and, if it fails to make full proof of due diligence on the part of the plaintiff, it must be rejected. But the counsel for the plaintiffs insists that the statute of Louisiana, and the interpretation given to it by the Supreme Court of that State in the case of Nott's Executor v. Beard, 16 La. 308, have so changed the law merchant, as to render unnecessary the presentment of a foreign bill for payment. After a careful examination of the opinion of the court |