W. L. Wittich, Plaintiff in Error, vs. The First National Bank of Pensacola, Defendant in Error, 20 Fla. 843

The Ciiief-Justioe delivered the opinion of the court. The declaration in this case in one count alleges that the bank received for collection a draft on the plaintiff, Wittich, residing at Pensacola, who gave the bank his check on the Merchants’ Bank of Pensacola, where he had ample funds. On the same day before noon defendant presented the check at the Merchants’ Bank for payment. The Merchants’ Bank told defendant that the cheek was good and would be paid at half-past one o’clock, the usual hour for exchanging checks between banks, which was according to the established custom of tlie banks at Pensacola.

Defendant, without further- demand on the Merchants’' Bank, caused the check to be immediately “ protested by a public notary, whereby the credit of the plaintiff and his reputation for solvency sustained great injury, to his damage $25,000.” In another count it was alleged generally that defendant received from plaintiff, residing and doing business at Pensacola, his check on the Merchants’ Bank of Pensacola, which had ample funds of plaintiff to pay the check, and upon defendant presenting the same to the Merchants’ Bank it was not paid, whereupon defendant caused the check to be protested by a public notary, whereby the credit and reputation of plaintiff were greatly injured.

Defendant demurred on the ground that the declaration did not show a cause of action. The demurrer was sustained and judgment rendered for defendant. The only question is whether, under the circumstances, defendant is liable in this suit for causing plaintiff’s check to be protested for non-payment. It has been held that a refusal by a banker to honor his customer’s check, if he has sufficient funds in his hands to pay it, is actionable. Marzetti vs. Williams, 1 B. & Ad., 415; Rolin vs. Steward, 14 Com. B., 78 Eng. C. L. Rep., 595; Addison on Torts, (D. & B. Ed.,) 11.

But this is not the ground of the present action. The general rule in this country is, that the holder, in order to charge the drawer in case of a dishonor, is bound to present the check for payment within a reasonable time and to give notice of the dishonor to the drawer within a like reasonable time; otherwise the delay is at his own peril. This is where the drawer has funds in the bank when his check is drawn. Story on Prom. Rotes, §493,6th Ed., and Rotes.

But, though in such cases notice of demand and refusal to pay is necessary for absolute protection, it is not necessary to protest a check, as it would be in the case of a foreign bill. Morrison vs. Bailey, 5 Ohio St., 13; Pollard vs. Bowen, 57 Ind., 234; Griffin vs. Kemp, 46 Ind., 172; Jones vs. Heilinger, 36 Wis., 149. A failure to give notice, however, will not discharge the drawer from liability unless he has suffered by the omission, and then onty to the extent of the damage sustained. Story on Prom. Rotes, §492.

It was, therefore, proper on the part of the defendant, the cheek not being paid on presentation, for his own protectection to give notice to the drawer of non-payment. Defendant received the check on account of a claim in its hands for collection, and for that reason exercised proper caution. Though it may have been the custom among the banks of Pensacola to “ exchange checks 7 at the close of the day’s business, and plaintiff may have had funds in bank at the time of presentment to meet his check, the defendant could not know that the money would be there at a later period.

Although the bank upon which the check was drawn had funds of plaintiff’ and ought to have paid the check on presentation, and may be liable for not paying it, the defendant does not appear to be responsible for the non-payment. He was clearly pursuing his right in giving notice to the plaintiff and could be held for any injury to plaintiff’s credit and reputation growing out of the matter by giving the notice of non-payment.

While a “ protest” is unnecessary in case of the non-payment of inland bills and checks of this description, that is, the employment of a notary to give the notice and make a written certificate of the fads of presentation, non-payment and notice under his notarial seal, yet, as the holder had a perfect right for his own protection to give the notice, we think he had an equal right to employ another to give the notice for him, and we discover no good reason why, for his own purposes, he may not employ the notary to certify to the fact.

In the case of paper not requiring protest the notary’s charges are of course not to be paid by the drawer. “ In a very frequent and important use relating to bills of exchange, protest, in legal strictness, means the formal declaration drawn up and signed by the notary, that he presented the bill for acceptance or for payment and that it was refused. In this sense it does not apply to inland bills or promissory notes, for as to these no presentment by notary, acting officially, is by the general mercantile law necessary.

Any one may make the demand ; though under statutes allowing the notary’s certificate to be read in evidence of demand and refusal, the employment of one is usual and convenient.” “ Protest ” is popularly understood to embrace all the steps necessary to charge those who may be liable, as well as mere presentment and official declaration of dishonor. Abbott’s L. Dict., tit. Protest; 47 N. Y., 570; 2 Ohio State, 345.

Although a protest of plaintiff’s check may have been unnecessary, it cannot be inferred that any injury was suffered by the plaintiff in consequence of it, and there is no allegation of special damage sustained by means of any wrongful, malicious or wilful conduct of the defendant in the matter. The unnecessary act of protesting. the check is not necessarily a wrongful act. “ If a man sustains damage by the wrongful act of another he is entitled to a remedy; but to give him that title two things must occur: damage to himself and a wrong committed by the other party.” Rex vs.

Com’rs of Sewers, 8 B. & C., 355; 1 Addison on Torts, 2. The judgment must be affirmed.