Where the protest of a bill of exchange contained an exact copy
of the bill, but the acceptance was made by "Chas. Byrne" instead
of "And. E. Byrne," as it was in the original bill, this variance
or error in the name of the acceptor's agent ought not to have
excluded the protest from being read in evidence to the jury.
It is unnecessary that a copy of the protest should be included
in the notice to the drawer and endorsers. The object of the notice
is to inform the party that payment has been refused, and hence
such a description of the note as will give sufficient information
to identify it is all that is necessary.
In this case, the protest had an accurate copy of every material
fact which could identify the bill: the date, the place where
drawn, the amount, the merchandise on which it was drawn, the ship
by which it was sent, the balance on the cotton for which it was
accepted, the names of drawers, acceptor, endorsers; everything but
the abbreviations and flourishes in the Christian name of the
acceptor's agent. This mistake could not mislead any person as to
the identity of the instrument described.
The case is stated in the opinion of the court.
MR. JUSTICE GRIER delivered the opinion of the Court.
The plaintiffs declared against the defendant, as drawer of a
bill of exchange, by the name and style of James Reid and Co., of
which the following is a copy:
"No. ___. �4,417 14
s. 11
d. st'g. Mobile, Sept.
9, 1850"
"Sixty days after sight of this first of exchange, second and
third unpaid, pay to the order of ourselves, in London, forty-four
hundred and seventeen pounds, 14
s. 11
d. st'g,
value received,
Page 58 U. S. 607
and charge the same to account of 1,058 bales cottom per
'Windsor Castle.'"
"Your obedient servants,"
"Pr. pro JAMES REID AND CO."
"WM. MOULT, JR."
"To HY. GORE BOOTH, ESQ., Liverpool."
"
Acceptance across the face of the bill."
"Seventh October, 1850. Accepted for two thousand five hundred
and seventy-one pounds eighteen shillings and seven pence, being
balance unaccepted for acpt. 1,058 bf. cotton, pr. Windsor Castle,
payable at Glyn and Co."
"Pr. pro HENRY GORE BOOTH"
"AND. E. BYRNE."
"Due 9 Decem."
"Endorsed: "
"Pay Messrs. A. Dennistoun and Co., or order,"
"Pr. pro JAMES REID AND CO."
"WM. MOULT, JR."
After reading this bill with its endorsements, the plaintiff
offered in evidence a regular protest, endorsed on a copy of a bill
agreeing in every particular with the above except that for "And.
E. Byrne" was written "Chas. Byrne."
The defendant objected to the reading of the protest in evidence
because it did not describe the bill of exchange produced by the
plaintiffs, but a different bill. The court sustained this
objection and excluded the protest from the jury, which is the
subject of the first bill of exceptions.
A protest is necessary by the custom of merchants in case of a
foreign bill in order to charge the drawer. It is defined to be in
form
"a solemn declaration written by the notary under a fair copy of
the bill, stating that the payment or acceptance has been demanded
and refused, the reason, if any, assigned, and that the bill is,
therefore, protested."
A copy of the bill, it is said, should be prefixed to all
protests, with the endorsements transcribed verbatim. 1 Pardess.
444; Chitty on Bills, 458.
However stringent the law concerning mercantile paper with
regard to protest, demand, and notice, may appear, it is
nevertheless founded on reason and the necessities of trade. It
exacts nothing harsh, unjust, or unreasonable. A protest, though
necessary, need only be noted on the day on which payment was
refused. It may be drawn and completed at any time before the
commencement of the suit, or even before the trial, and
consequently may be amended according to the truth, if any mistake
has been made.
Page 58 U. S. 608
The copy of the bill is connected with the instrument certifying
the formal demand by the public officer, as the easiest and best
mode of identifying it with the original. Mercantile paper is
generally brief, and without the verbiage which extends and
enlarges more formal legal instruments. Hence it is much easier to
give a literal copy of such bills than to attempt to identify them
by any abbreviation or description. The amount, the date, the
parties, and the conditions of the bill form the substance of every
such instrument. Slight mistakes or variances of letters or even
words, when the substance is retained, cannot and ought not to
vitiate the protest. A lost bill may be protested when the notary
has been furnished with a sufficient description as to date,
amount, parties &c., to identify it.
In indictments for forgery, it is not sufficient to state the
"substance and effect" of the instrument; it must be laid according
to the "tenor," or exact letter; but the law merchant demands no
such stringency of construction. The sharp criticism indulged when
the life of a prisoner is in jeopardy cannot be allowed for the
purpose of eluding the payment of just debts.
It is unnecessary that a copy of the protest should be included
in the notice to the drawer and endorsers. The object of notice is
to inform the party to whom it is sent that payment has been
refused by the maker and that he is held liable. Hence such a
description of the note as will give sufficient information to
identify it is all that is necessary. What was said by Mr. Justice
Story in delivering the opinion of this Court in
Mills v. Bank
of the United States with regard to variances and mistakes in
notices will equally apply to protests:
"It cannot be for a moment maintained that every variance,
however immaterial, is fatal. It must be such a variance as conveys
no sufficient knowledge to the party of the particular note which
has been dishonored. If it does not mislead him, if it conveys to
him the real fact, without any doubt, the variance cannot be
material either to guard his rights or avoid his
responsibility."
In the case before us, the protest had an accurate copy of every
material fact which could identify the bill -- the date, the place
where drawn, the amount, the merchandise on which it was drawn, the
ship by which it was sent, the balance on the cotton for which it
was accepted, the names of drawers, acceptor, endorsers -- in fine,
everything necessary to identify the bill. The only variance is a
mistake in copying or deciphering the abbreviations and flourishes
with which the Christian name of the acceptor's agent is enveloped.
The abbreviation of "And." has been mistaken for Chas., and the
middle letter E. omitted. The omission of the middle letter would
not vitiate a declaration or indictment. Nor could the mistake
mislead any person as to the identity of the instrument
described.
Page 58 U. S. 609
We are of opinion, therefore, that the objection made to this
protest "that it does not describe the bill of exchange produced,
but a different bill" is not true in fact, and should have been
overruled by the court.
The renders it unnecessary for us to notice the offer of
testimony to prove the identity, which was also overruled by the
court.
The judgment of the circuit court is reversed, and venire de
novo awarded.
Order
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the Southern
District of Alabama, 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 in 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.