| U.S. Circuit Court for the District of Ohio | Dec 15, 1838
OPINION OF THE COURT. This action was brought against the indorser of a promissory note, which is admitted by the default of the defendant; and the judgment being entered by default, a motion is made to instruct the clerk, to include the cost of the protest in the taxation of costs. In the case of Union Bank v. Hyde, 6 Wheat. [19 U. S.] 572, the supreme court say, “The nullity of a protest on the legal obligations of the parties to an inland bill, is tested by the consideration, that independently of statutory provisions, if any exist any where, or conventional understanding, the protest on an inland bill is no evidence in a court of jhstice of either of the incidents which convert the conditional undertaking of an indorser into an absolute assumption.” And again, a protest on an inland bill'or promissory note is not necessary, nor is it evidence of the facts stated in it. In Nicholls v. Webb, 8 Wheat. [21 U. S.] 326, the court say, “It does not appear that, by the laws of Tennessee, a demand of payment on promissory notes is required to be made by a notary public on a protest made for nonpayment, or notice given by a notary to the indorsers. And by the general law it is perfectly clear, that the intervention of a notary is unnecessary in these cases. The notarial protestis not. therefore,evidence of itself, in chief, of the fact of demand, as it would be in cases of foreign bills of exchange; and in strictness of law it is not an official act But, we all know, that in point of fact notaries are very commonly employed in this business; and in 'some of the states it is a general usage so to protest all dishonored notes, which are lodged in or have been discounted by the bank. The practice has, doubtless, grown up from a sense of its convenience and the just confidence placed in men who, from their habits ■and character are likely to perform these important duties with punctuality and accuracy. We may, therefore, safely take it to be true in this case, that the protesting of notes, if not strictly the. duty of the notary, was in conformity to general practice and was an employment in which he was usually engaged.”
The notary in the above case being deceased, his book in which he made entries of. demands made on promissory notes, ■ and parties given, was received as evidence. The usage to protest promissory notes discounted by banks or made payable at banks, is as universal, as to protest foreign bills of exchange. And it has been adopted for the same , reason, the convenience of all who are engaged in commercial transactions. And it is believed to be the practice, in most states, to receive the protest, on a promissory note, the same as on a bill of exchange as evidence of demand. In some of the states this is regulated by statute. The note in question was given payable in a different state from