v. SEARS'S ADMINRS. As to the proteft being for want of funds in the hands FENWICK of the drawees, it goes only to discharge the holder from his obligation to give notice to the drawer, but does not fuperfede the neceflity of notice to the indorfer. Kyd, 129, 131, (82, 83.) There is reason for this diftinction. A drawer may have a good reason for drawing, although he has no effects in the hands of the drawee, but yet no injury can result to him by want of notice. But the indorfer may know that the drawer has been in the habit of drawing; but may not know the exact state of the funds upon which he drew.* The endorfer endorses on the credit of the drawer; and notice is necessary to enable him to take measures to secure himfelf from the drawer. As to the time of notice-the non-acceptance was on the 30th of March, 1798, and on that day the holder's obligation to give notice, accrued, but he did not give it until January or February, 1801. The act of congress did not ftop the intercourfe between this country and France, until 1ft July, 1798. There is no evidence that any attempt was made during this time to fend notice. The bill, in feven months, found its way from France to Georgetown, and what prevented its getting back again in feven months more? The evidence ftated in the bill of exceptions fhews that there was always a circuitous route by which letters and papers might have got to France. There is alfo evidence that the drawer was able to pay for fome time after the drawing the bill, and that he afterwards left France. Notice must be given by the indorfee himself, Kyd, 126, (79, 80.) The only notice which was given in this cafe, was by Judah Hays, who is not a party on the bill. The court, and not the jury, ought to have decided the question of reasonable notice, or due diligence. It is a question of law. Kyd 126, 127, (79, 80.) Notice must be given by the firft poft. The courts in Maryland have always fo decided. If the court have not decided the queftion of due diligence they have erred. They have alfo erred in the opinion which they did give. They admit that reasonable notice is neceffary to enable the plaintiffs to recover upon the bill on the first count, but that, in cafe the defendant below knew that the drawer had no → See Evans on bills, 62 and 67, Amer. edition. FENWICK funds in the hands of the drawees, it is not neceffary to V. prove fuch notice in order to enable the plaintiffs to re SEARS'S cover on the count for money had and received. It is not ADMINRS. known on what grounds the court below could take fuch a diftinction. There was certainly nothing in the evidence which could fupport fuch an opinion. If the holder had been guilty of fuch negligence as to discharge the indorfer from his liability upon the bill, he was not entitled to recover upon either count. It was an objection which went to the whole merits of the cafe; and it is not like the cafe where a fecurity or inftrument may be vacated, but the debt still remain. 4th. The letters of administration granted in Maryland did not authorize the plaintiffs to administer affets in the diftrict of Columbia. The laws of Maryland, which were adopted by congrefs for this diftrict, do not authorize an adminiftration of affets under letters of adminiftration granted in another ftate. And fuch has been the uniform course of decifions in the courts of Maryland; because, by the testamentary laws of Maryland, the administrator is to give bond, and render an account of his administration; and the affets are to be distributed in the manner prescribed by law. Although this is the law of Maryland, and the laws of Maryland have been adopted in this district by congress; yet they do not operate as laws of Maryland, but as laws of the United States. And although the law is the fame, yet the jurifdiction is different. This diftrict, and the ftate of Maryland, are to each other as separate states. Simms, for defendants in error. ift. As to the objection that the notary had not taken the neceffary oaths. It is believed that no cafe can be produced to fupport this exception. It would be extremely inconvenient if the acts of a commiffioned minifterial officer, fhould be confidered as invalid, because he had neglected to take an oath prefcribed by law.* *Note. See the cafe of Thurfan clerk V. SEARS'S By the act of Affembly of 1779, c. 25, §. 8, a penalty FENWICK is enacted for not taking the oath there mentioned. This does not make void the acts of the officer, if he neglects to take the oath required, but only fubjects him to the penalty, for acting without taking it. From this it may be inferred that the legislature confidered his acts as valid. The court did not err in refufing the evidence offered, because it was an attempt to prove a negative. The oath might have been taken before any judge, or justice of the peace in the state of Maryland, or any alderman in the city of Annapolis. The law does not require fuch oath to be recorded, or depofited in any particular place. A party can never be called upon to prove that a notary public, who protefts a bill of exchange, was duly qualified to make fuch a proteft; confequently the court ought not to admit evidence that he was not, fo as to throw the burden of proof upon the other party. There is no penalty prescribed for not taking the oaths required by the conftitution of Maryland, and by the act of 1779, but it does not follow from that circumstance, that the acts of the officer, duly appointed and commiffioned, would be void by his not having taken the oaths, because he might be indicted and punished for his contempt of the law, and his neglect of duty. Innocent people ought not to suffer by his negligence, especially as they have no means of knowing whether he had taken the oaths or not. The public commission from the proper authority is all that can be required to protect the rights of third persons. It is true that in the paffage cited from Kyd 136, (87.) it is faid, that "the person whose office it is to do these "acts” (that is make protefts, &c.) " is in common lan guage, termed a public notary," but it is also faid in Evans 94, that when there is no public notary in the place, the protest may be made by any other person. 2d. As to the time of making the proteft for non-pay ment. The time when a proteft ought to be made depends much on the cuftom of the place. 4 Bac. ab. Guillim's clerk of Oxford was entitled to recover his fees accruing, before he had taken the oaths. ADMINRS. v. SEARS'S FENWICK Ed. 687. The time in England was for a long while unfettled. In Salk. 132, Hill v. Lewis, it was determined that, with refpect to foreign bills, the drawee had three days ADMINRS. of grace to pay them in, and that no demand need be made till the expiration of the three days, confequently that the protest need not be made till after the third day of grace. But in the cafe of Taffel v. Lewis, Ld. Ray. 743, it was held that the time of payment is the laft of the three days, and that the demand ought to be made on that day. In a late cafe of Leftly, v. Mills, 4 Term, Rep. 173, Ld. Kenyon held that the acceptor had till the last moment of the last day of grace to pay the bill, confequently the proteft could not be made till the day after. But Buller held that the acceptor was bound to pay the bill, on demand, on any part of the third day of grace, and that the bill ought to be protefted on that day, and it is believed that fuch is now the established cuftom in England. Kyd, 120, 121, (79, 80.) But the custom of merchants in the United States differs in fome refpects from the cuftom of merchants in England. Brown v. Barry, 3 Dal. 365, 368. It is believed that, in the United States, the custom is to proteft on the day after the last day of grace. Such is the custom in the banks of Alexandria and Columbia, in the cafe of promiffory notes; and no difference is known in that refpect between promiffory notes and bills of exchange. There is no reason why a difference should exift, as the three days of grace are allowed in one as well as in the other. But in this cafe, the bill was protefted for non-acceptance and the defendant thereupon became liable to the action of the plaintiff. In an action brought upon the non-acceptance, it is not neceffary to aver a demand or proteft for non-payment on the day when the bill becomes due; and what it is not neceffary to aver, it is not necessary to prove; Lilly's Ent. 55, Dunftar v. Pierce, which was a cafe on a demurrer to the declaration; demurrer overruled, and judgment affirmed in the exchequer. But had the bill been accepted, then a proteft for non payment would have been abfolutely neceffary. Evans 66, Kyd 140, Doug. 55, Milford v. Mayer. Buller N. P. FENW 269. Bright v. Purrier. Kyd, 110, 111. 3 Wil. 16, FENWICK 17. 3. Under the circumftances of the prefent cafe, the plaintiffs were not bound to give the defendant notice at all; the jury having found in substance, that at the time. the defendant indorsed the bill, he knew that the drawer had no effects in the hands of the drawees; and was therefore guilty of a fraud on the plaintiff's inteftate, in felling him the bill. The plaintiffs therefore had a right to recover on the count for money had and received. Befides, the reafon of the rule which difpenfes with notice to the drawer, when the drawees have no effects, applies as strongly to the indorfer who knows that fact, as to the drawer. Notice to fuch an indorfer can be of no benefit, because he knew, at the time of indorfing, that the bill would not be paid, and therefore must have taken security from the drawer, or if he did not, it was his own fault. By knowing at the time of indorfing that the drawees had no funds of the drawer in their hands, he virtually had notice of the non-acceptance and non-payment. The rule, which requires notice to an indorfer, is made for his protection and benefit; and ought not to be converted into the means of enabling him to practice a fraud. The opinion of the court below, that although notice might be neceffary in order to fupport an action on the bill upon the first count, yet it was not neceffary to maintain the count for money had and received, was certainly correct, and fully warranted by the cafe of Bickerdike v. Bollman, 1 Term rep. 408, 409, 410. In that cafe Afhhurft, juftice, fays that notice is not neceffary to the drawer when he has no effects in the hands of the drawee; "for it is a fraud in itself, and if that can be "proved, the notice may be difpenfed with." Kyd 129. (82.)Evans 59. Every indorfer is, to his indorfee, as the. drawer of a new bill. Kyd 113. (72.) 1 Salk. 133. Harry v. Perrit, 2 Shower 501. Claxton v. Swift, and in Heylin v. Adamfon, 2 Burr, 674, Lord Mansfield fays, "that when a bill of exchange is indorfed, by the perfon "to whom it was payable; as between the indorfer and "indorfee, it is a new bill of exchange, and the inderfer v. SEARS'S ADMINRS. |