Joseph W. Meeks v. Joseph E. Davis, 3 Rob. 326

Martin, J. The petition states, that the plaintiff being the holder of an order or bill, by which the defendant was required to pay the sum of $434 25, in funds equivalent to Mississippi Union Bank post notes, the latter accepted the same. At the maturity of the bill, which was payable, one day after sight, at the Commercial and Rail Road Bank of Vicksburg, the plaintiff presented it there for payment, which, not being made, it was duty protested. The answer admits the defendant’s liability to' pay the amount stated on the face of the bill, and avers his constant readiness to do so.

The plaintiff had judgment for the amount of the bill, interest and costs, and the defendant has appealed. The bill was accepted on the 30th of May, 1839, and protested on the 3d day of the following month. On the back of it is an endorsement, dated December 29th, 1840, which states, that, on that day, John L. Nicholson presented the bill to the defendant, who tendered him the amount of principal and interest in Mississippi Union Bank post notes, answering the description of those named in the draft, which was refused.

Nicholson deposed according to what he had written on the back of the bill; and, farther, that the defendant offered him a $500 Union post note, and requested him to take there-out the amount of the bill. The defendant offered Union post note's, dollar for dollar, which were at the time at a discount of from sixty to seventy per cent. Defendant gave evidence of the value of the Mississippi Union Bank post notes on the day of the protest ; and the judgment is for the value of the amount of the bill on that day.

The defendant’s counsel has contended that the court erred, and that the judgment ought to have been for the value of the notes on the day on which the first application for payment was made to him. ' He contends that the document sued upon is not a bill of exchange, it being of the essence of such a bill that it should be payable in money, arid not in anything else ; and that it is a contract for the delivery of a specific article, for the nondelivery of which no damages can be claimed from him, unless he 'has been legally put in mora, before the institution of the suit.

The plaintiff’s counsel has replied, that a protest by a notary public is one of the modes pointed out by the Civil Code, art. 1905, for putting the debtor in mora. The protest in the present case has been admitted in evidence, without opposition on the part of the defendant. The judge, therefore, did not err in giving judgment for the plaintiff. Judgment affirmed.