#### *Stainback v. The Bank of Virginia.

April Term, 1854,

Richmond.

1. Foreign Bills of Exchange—Protest—Sufficiency of - Case at Bar.—The notarial protest of a foreign bill of exchange states that the notary took the bill to the counting-house of the drawee, and there exhibited it to a clerk of the drawee, and demanded acceptance thereof ; and that the said clerk replied that the same could not be accepted. Held: That the protest is sufficient to bind the endorser.

2. Same—Acceptance—Parol Evidence.*—Parol evidence that the clerk was authorized to refuse acceptance of the bill, is admissible in an action by the holder against the endorser.

3. Same—Same—Same.—As the protest is sufficient itself to bind the endorser, if parol evidence was not admissible to prove the authority of the clerk to refuse acceptance of the bill, yet its admission, could not injure the defendant; and therefoi'e, it is no ground for reversing the judgment.

4. Foreign Bills of Exchange—Notice of Dishonor—Sufficiency of—Case at Bar.—A bill drawn in Peters-burg, Virginia, on a house in London, was protested for nonacceptance on the 5th of April 1843. The next Cunard steamer sathed from Liverpool for the United States on the 19th of that month, and notice of the dishonor of the bill was sent by that steamer. At that time these steamers carried the mail between the two countries under a contract with the British government; and it was the usual mode of transmitting letters. There were, however, regular lines of sailing packets between London and Liverpool and the United States, for which letter bags were made up at the London post office, and such packets sathed from London or Liverpool on the 7th, 10th and 17th of April 1843. But it was probable that the steamer of the 19th would arrive before any of them.

Held: The notice was sufficient.

This was an action of assumpsit in the Circuit court of Petersburg, brought by the Bank of Virginia against Fittleberry E. Stainback, upon a bill of exchange for one thousand pounds sterling, drawn by F. C. *121Stainback of Petersburg upon T. W. Clagett of the city of London, endorsed by the defendant, and protested for nonacceptance. Upon the trial the plaintiff introduced the bill of exchange, which bore date the 20th *o£ February 1843, and was made payable sixty days after sight; and then offered in evidence the protest, which stated that oil this day, the 5th of April 1843, at the request of Call, Martin & Co. of London, bankers, bearers of the bill of exchange whereof a true copy is on the other side written, I, John Harrison of the city of London,’ a notary public, &c., went to the counting-house of T. W. Clagett, Esquire, within this city, upon whom the said bill is drawn, and speaking to the clerk, exhibited unto him the said bill, and demanded acceptance thereof, whereunto he answered that the same could not be accepted. Therefore X, the said notary, at the request aforesaid, have protested, &c.

The plaintiffs also offered evidence in respect to the presentment and dishonor of the bill, and the usage of London as to the mode of presenting bills for acceptance. The defendant objected to this evidence, and also to the protest, but consented that it should be heard, it being agreed by the court and the counsel for the plainLiffs, that all objections to the evidence might be made after it was heard, as if made before.

The plaintiffs then offered evidence to prove that it is, and was in April 1843, the usage ox merchants and bankers in London to leave a bill for acceptance on one day, and to call for it on the next, leaving it with the drawee in the meantime; that if the bill be returned without acceptance, the holder puts it into the hands of a notary, who again presents it at the place of'business of the drawee for acceptance, and, in case of refusal to accept by the drawee, or by a clerk, or other person employed therein, makes out the protest; and that a refusal by a clerk to accept under such circumstances, is, by the custom of London, a sufficient dishonor to charge the previous parties; and that the usage had been observed in this case.

The plaintiffs further offered evidence to prove, that*in April 1843 the steamers of the Cunard line sathed from Liverpool for Boston twice, the days of sailing being the 4th and 19th days of the month; that the steamers of that line then carried the mails between Great Britain and the United States, under a contract made in 1841 with the British government; that it had been the usage of the London post office, since that contract, to forward all letters addressed to the United States, by that line, unless specially directed to be forwarded by other vessels, notwithstanding that in the interval between the delivery of any letter into the office and the sailing of a steamer of that line, one or more other vessels, steam or sailing, might leave Great Britain for the United States; and that merchants generally, if not invariably, receive their letters from Great Britain by that line, and did so in April 1843; that it was the usage of merchants, bankers, *&c.,*of the city of London, in April 1843, to forward notices of protest to parties in the United States by the steamers of that line, and that such notices are, by the usage of X^ondon, considered sufficient, if dispatched by the first mail made up in London after the dishonor of the bill, for conveyance to the United States by that line.

The defendant offered evidence to prove, that in April 1843, there were five regular lines of sailing packets between New York and Ifiverpool, the regular days of sailing each way being the 1st, 7th, 13th, 19th and 25th days of each month; that at the same time there were two regular lines of sailing-packets between New York and London, which sathed from London on the 7th, 17th and 27th days of each month; and from X’ortsmouth, on the 1st, 10th and 20th days of each month; that it was the usage of all these packets at that time to carry letter bags which were made up at the post office, and that such is still the usage; and that it was, in April 1843, and still is, the *usage of the London post office to issue, daily, a sheet called the “Packet Ifist,” announcing the days of sailing of packets from London and Liverpool for the United Stales and other foreign countries.

The defendant also offered evidence to prove that it was, in April 1843, the usage of merchants and bankers in I^oufion and in New York to forward notices of dishonor across the Atlantic by the first regular packet after the dishonor, whether using-sails or steam, or both; that the usage of Ijondon was, and had long been, to deposit in the post office, the next day after the dishonor of a bill, a notice addressed to the party in the United States, to be forwarded by the next mail, and that the usage in London did not require or authorize the notice to be withheld for Cunard’s line if a packet of any other regular line sathed in the interval.

The evidence on both sides being closed, the defendant objected to the protest as evidence in the cause, on the ground that it did not state facts sufficient, if true, to make out the dishonor of the bill for nonacceptance, and moved the court to exclude the same from the jury; or, if, the court should admit the protest as evidence, to instruct the jury that it is not competent for the plaintiffs to add to or explain the protest, or to prove the facts of presentment, demand and refusal, or either of them, or the circumstances of either, by parol or other extrinsic evidence.

Whereupon the court permitted the said protest to go in evidence to the jury, anti refused to give the instruction asked for; but instructed the jury that the said protest is sufficient, provided the jury believe from the evidence in the cause, that the clerk to whom the said bill was presented by the notary for acceptance, was authorized by the drawee T. W. Clagett to refuse acceptance thereof.

And then the defendant, by counsel,. *122moved the *court further to instruct the jury as follows: 1 ‘If you believe that the bill on which this suit is founded was protested for nonacceptance on the 5th day of April 1843, that the letter from the holder, containing notice to the plaintiffs of the nonacceptance, was written on the 17th of April, and forwarded by the Cunard steamer of the 19th from Liverpool to Boston, that being the first steamer of that or any line that left England for the United States after the date of the protest; that during the interval between the 5th and 17th days of April, one or more regular sailing packets left London for New York, by which the holders of the bill might have forwarded the notice; and that during the same interval one or more regular sailing packets left Liverpool for New York, the regular days of sailing of which were known in London, by which the holders of the bill might have forwarded the notice; that mails or letter bags were regularly made up at the London post office for the regular sailing packets from that city, and also for those from Liverpool to New York; then the notice of dishonor was not despatched in due time, and you should find for the defendant. And that this is so, although you find that the Cunard line of steamers carried the mail between the United States and Great Britain, under a contract with the British government; that commercial letters from merchants in Great Britain to their correspondents in the United States, were usually forwarded by that line, and that the steamer of the 19th of April might have been reasonably expected to arrive as soon as any of the sailing packets referred to, or sooner.” But the court refused to give said instruction, and instructed the jury that the “notice of the dishonor of the said bill given to the defendant was sufficient, if the jury believe from the evidence that the Cunard line of steamers was the regularly established mail line between Great Britain and the United States, *and was the regular, ordinary mode of communication generally used and adopted by merchants, bill brokers and other men of business in Great Britain, as the channel of communication from that country to this; and that such notice was transmitted by the first steamer of that line which left Great Britain after the protest of said bill.

To these several opinions of thfe court the defendant excepted.

The jury found a verdict for the plaintiffs, and assessed the damages at five thousand one hundred and eighty-five dollars and five cents, with legal interest on four thousand seven hundred and eleven dollars and eleven cents from the 24th of February 1843, that being the day when the bill was discounted by the bank, until paid; and the court rendered a judgment according to the verdict. Whereupon the defendant applied to this court for a supersedeas, which was awarded.

Joynes and Patton, for the appellant.

D. May and Stanard, for the appellees.

*

The principal case is cited in DeVoss v. City of Richmond, 18 Gratt, 363.

SAMUELS, J.

Two questions are presented by the record before us:

1st. Whether the protest made by the notary is sufficient in itself, or when aided by the parol proof offered, to charge the plaintiff in error as endorser.

2d. Whether the notice of dishonor was duly forwarded to the endorser, so as to charge him.

A_s to the first: The protest sets forth the facts that the notary took the bill on which the suit is brought, to the counting-house of Ciagett the drawee, and speaking to a clerk, exhibited the bill and demanded acceptance thereof; whereunto he answered that the same could not be accepted; and that thereupon the notary protested the bill for nonacceptance. In the *argument here, the plaintiff’s counsel made but one objection to the sufficiency of the protest ; that is, that it does not state that the clerk of the drawee had authority to refuse acceptance. This objection should not prevail, if the protest had no extrinsic support: The most formal words could not more fully express the notary’s opinion of the clerk’s authority in the premises, than is set forth in the protest. The notary at the counting-house of the drawee, exhibited the bill to a dark, demanded acceptance, which was refused, the answer to the demand noted, and thereupon the bill protested. This means that in the judgment of the notary it was proper to exhibit the bill to this clerk, and demand acceptance from him; that the clerk had authorityto act on that demand; that his answer was a proper refusal: And upon all this the notary made his protest, which plainly enough expresses his opinion in regard to the sufficiency' of every step on which he founded that official act.

The protest in this case is in the same form as that in Nelson v. Fotterall, 7 Leigh 179. In that case the whole court seems to have thought that parol proof was admissible to show the clerk’s authority to refuse acceptance; two of the judges thought it necessai^ in aid of the protest; two others thought it unnecessary, and that the protest of itself was sufficient: It was not intimated by any one, that if the protest did not sufficient^''verify the fact of the clerk’s authority, parol proof was inadmissible to supply the defect. The court is the proper tribunal to decide what facts are proved by written documents. If the court, as it might have done, had decided that the protest proved a proper demand, and the other facts set forth therein, it was unnecessary, and therefore improper, to hear parol proof in regard to it, unless proof had been previously offered to assail the truth of facts alleged therein. If this be error at all, it certainly is not to *the prejudice of the plaintiff in error here; it can do him no harm, after facts are proved by appropriate written testimony, the truth of which is in nowise impeached, to admit parol proof of the same fact.

Thus, whether we regard the protest as sufficient in itself, or as supported by the *123parol proof fully showing the clerk’s authority and other facts, the court did not err to the prejudice of the plaintiff in error in permitting- tthe protest and evidence to go to the jury: The parol proof established the fact that the clerk had authority to refuse an acceptance.

As to the second : The law requires notice of dishouor of commercial paper to be transmitted to the parties thereto for the purpose of enabling them to do what is needful to protect their interests; to this end it may be important to have early notice, and the law requires it to be given, in the case before us the notice was sent in a mode which would bring it to the hands of the plaintiff in error at the earliest practicable day: Yet it is alleged that it should have been sent by another mode, which, although it might have commenced the transmission at an earlier day, yet would not have delivered it so soon as the mode adopted. If we could yield to the argument of the plaintiff’s counsel, we should sacrifice the object of the law. The notice was transmitted in the mail by an ocean steamer belonging to the Cunard line, which line carried the mail from Great Britain to the United Slates. It was sent by the first steamer which started after the bill was dishonored. This brings the case within the stringent rule of requiring that the notice be sent by the first mail. It appears, however, that there are regular lines of sailing packets from London (the place of the drawee’s residence) to the United States; that these packets carried letter bag's made up at the London post office; and that the times for their sailing from Great Britain occurred between the day *of the dishonor ox this bill and the day of the steamer’s leaving. It further appears, that although a sailing-packet should leave on the regular day for her departure, and thereafter a steamer should leave on her regular day of departure, the steamer would probably arrive first in the United States. It further appears, that the line of mail steamers is used by a very large majority of business men for the transmission of letters from Great .Britain to the United States. There can be no question, that of these two modes of transmission, the proper one was adopted. This one has in its favor the facts that it •carries the mail, that it is the ordinary mode of transmission, and that it may be expected to deliver a letter at an earlier day than the other; that other having in its favor the facts that it starts at an earlier day, and carries a letter bag. There is nothing to counterbalance the fact that the other line will deliver the letter at the earliest daju I think the notice of dishouor was duly transmitted.

I am of opinion to affirm the judgment.

The other judges concurred.

Judgment affirmed.