William Bailey, Plaintiff in error, v. William B. Dozier, 6 How. 23

Mr. Justice NELSON delivered the opinion of the court. This is a.writ. of error to the Circuit Court of. the United State? held by the district, judge in. and for the Southern District of Mississippi. The suit was, brought on an inland bill of exchange by the indorsee against the drawers, and resulted, in the court below, in. a verdict for the defendant on an objection taken to the validity of the protest'.

The statute of Mississippi provides for protesting inland bills in case of non-acceptance, or of non-payment by the drawee, after due presentment, in like manner as in case of foreign bills of exchange; and allows five per cent, damages on the amount for which the bill is drawn.. (Howard & Hutchinson. Statutes of Miss., pp. 372, § 8 ; 375, § 17 ; and 376, § 20.). On the trial, the notary was called as a witness by the plaintiff, and proved the presentment of the bill at maturity, demand of- payment, and refusal, and notice to the drawers.

And further, that he drew up the protest in form at the time and delivered it to the holders, but that, on account pf some alleged defect,-. which is not stated in- the bill of exceptions, it was returned to him, and a second one made out, and delivered, which was also subsequently returned, and a third drawn up, which Was the protest offered in evidence. It was made -out nearly a . year after the presentment. The court below decided that ■ the protest was invalid, and instructed the jury that the plaintiff could not recover, unless the bill had been duly protested according to. the requirement of the statute.

Whereupon a verdic.t was rendered for the der fendant. The bill was presented and the protest made out by a jus-1-tice of the peace, ás a notary ex officio ; and on the argument, the ruling of the ccurt was sought to be sustained, on the ground, that the power of this officer to protest bills extended only tOj cases where the notary was absent or could not be procured.

But, on looking into the laws of Mississippi, it was found that a subsequent statute had given the power to this officer in all cases, without any qualification, and the point was given up. (How. & Hutch., p. 430, § 24.) The ground of objection, therefore, is narrowed down to the time when, and the circumstances under which, the notarial protest was drawn up, in form.

And on looking into, the cases and books of authority on the subject, it will be found, that, if the bill has been duly presented for acceptance, or payment, and dishonored, and a minute made, at the time, of the steps taken, which is called noting the bill, the protest may be drawn up in form afterwards, at the convenience of .the notary. And it has been held, if drawn up at any time'before the trial, it will be sufficient. (Chitty on Bills, 334, 436, and cases.

Ed. 1842.) The minute contains a brief record of1 the facts which transpired on. presenting-the bill, and the protest, as subsequently made out, is but an extension of them in the customary form. The time of the extension, therefore, would seem to be-of no great importance. For the sáme reason, if a mistake, should occur, no great danger need be apprehended if the notary is permitted to correct if, provided the regular stéps have been taken, and noted, to charge the parties. The amendment would not be made from memory, or recollection, but from a written memorandum of ithe facts. .

But, without pursuing this view of the case further, a decisive ground against the ruling of the court below is, that a protest of the bill was not essential to enable the plaintiff to recover.

The statute of Mississippi is taken, substantially, from the 9 and 10 Vm. 3, ch. 17,,amended by the 3 and 4 Anne, ch. 9, under which it has always been held by the courts in England that the action at common law was not thereby taken away ; but that an additional remedy was given, by which the holder could recover interest and damages on an inland bill in cases where he was not entitled to them at common law- And that if he chose, to waive the benefit of the statute, he might still recover the amount due on the bill, by giving the customary proof of default and notice. (2 Ld. Raym. 992 ; S. C., 1 Salk. 131; S.

C., 6 Mod. 80; 2 Barn. & Ald. 696 ; Chitty on Bills, 466.) The act of Mississippi is not more explicit and positive in its terms, in respect to the duty of protesting., than that of the 9 and 10 Wm. 3, as will be seen on a comparison of the two acts, and should receive a similar

interpretation. It'follows,-therefore, from this view, as the plaintiff did not claim the five per cent, damages given by the act, he should have been allowed to recover the amount of the. bill, principal and interest, on the testimony of the notary alone, independently of the written protest. It appears from the record, that the defendant put in two pleas to the jurisdiction in the court below, for the want of proper parties; and also the plea of non assumpsit. To the latter, the similiter was added, upon which issue the cause went down to trial.

No notice was taken of the pleas to the jurisdiction. • It is suggested that this affords ground of error on the record. The plea of non assumpsit in bar of the action operated as a waiver of the pleas to the jurisdiction, which doubtless furnishes the. reason why no notice was afterwards taken of these pleas by either party. 3 Johns. 105; 6 Bac. Abr. tit. Pl. & Pl., let. a, pp. 186, 187 ; Gould, Pl. ch. 5, § 13. They were virtually abandoned by the defendant.

It was alsp suggested, that it appeared from the declaration that Fatheree, the payee of the bül, was a citizen of Mississippi, and that the plaintiff, deriving title from him, though a citizen of Virginia, could not maintain the action, for want of jurisdiction within the eleventh

section of the Judiciary Act. The answer to the suggestion is,.that the fact upon which it-is founded is not sustained by the record. The suit was brought, originally, against Dozier, and Fatheree; the drawer and payee, indorsers jointly, who are described in the commencement of the declaration as citizens of the State of Mississippi. But in a subsequent part of the declaration it is averred, that Fatheree, at the time the bill was drawn, and.also at the time of .its transfer to the plaintiff, was an alien, and rest-dent of Texas.

The suit was discontinued as to Fatheree before the trial, which left it between the plaintiff and the defendant alone. The plaintiff being a citizen of Virginia, and deriving title through a person competent to maintain a suit in the Circuit-Court against the defendant, that court properly took jurisdiction of the case. In every view taken of the case, we think the court below erred, and that the judgment should be reversed. Judgment reversed, with venire de novo by the court below. Order.

This cause came on to be heard on the transcript of the recv ord from the Circuit Court of the United States for the Southerm District of Mississippi, and was argued by counsel.. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit. Court iii this cause be and the same is hereby reversed, with costs, and that this cause be and the same is hereby remanded to the said Circuit Court, with directions to award a venire facias de novo.