By the Court.
delivering the opinion.
We think the Judge below was right, in holding that notarial fees cannot be recovered of the bank in this case, for the reason, that no protest was necessary, upon the failure of the bank to redeem its bills on demand. The agency of a notary may be very convenient in such a case; but it was not necessary. And this is the true test to apply. Whenever a protest is not required, notarial expenses cannot be recovered. Lefty vs. Mills, 4 T. R. 175; Windle vs. Andrews, 2 Burn. & Ald. 696; S. C., 2 Stark. Rep. 425; Miller vs. Hackley, 5 John. Rep. 375; Yonge vs. Bryan, 6 Wheat. Rep. 152; Union Bank vs. Hyde, Ibid. 573; Merrit Myers vs. Benton, 10 Wend. 117; is the only authority cited, adverse *261to this proposition. The opinion of the Court in this case, occupies nine or ten lines. The Court confesses that it is unsupported by authority, except the practice of the Circuit Court, and that is not uniform, and puts the decision upon untenable ground namely: that the fees of protest, is an expense, to which the holder of the note is subjected, by reason of the default of the endorser, who ought to have paid the ■ note at maturity ; that it may fairly be considered, as a charge incident upon the endorser’s failure to perform his contract^ and hence should be allowed to the plaintiff in the assessment of damages. Whereas, the endorser, in New York, and by the law merchant, is not liable to the holder, until demand is made of the maker, and he has been notified. Until then, he is in no default.
Judgment affirmed.