The opinion of the court was delivered by
Tod; J.The errors alleged may, for.’ the sake of shortness, be reduced to three. 1. In deciding, that no demand was requisite upop Laird) the maker of the note,'or' upon his representatives. 2. That verbal notice -by the clerk of the bank, was sufficient. 3.. In deciding, that under the words of the act’of assembly, incorporating the bank, both the 'notice of protest, and the protest itself, were unnecessary. ' ’ '
. " On the two first allegations of error, there is not, except from the peculiar wording of the act; of assembly, the least doubt with any ■member of the court. We all agree, that in the common case of a note, under the circumstances, here appearing, it would, have been unnecessary to make any demand of the drawer, or his representatives. Chitty on Bills, 395, 295, 297. Berkshire Bank v. Jones, 6 Mass. 524. Also, that the 'agency of a notary public was unnecessary, and that the yerbal notice' sent by the clerk of the bank ' was sufficient. Chitty on Bills, 276, 284, 293, 295, 297. Bank of North America v. M‘Knight, 1 Yeates, 145. S. C. 2 Dall. 158.
On the third point; was a protest, and notice of it to the endorser, rendered necessary by the words of the act of assembly, placing notes discounted at this bank on the same footing with foreign bills of exchange? It seems to me not. As to the reason for imposing, per force, this troublesome formality upon the bank and the dealers with it, a formality which may be dispensed with, if the holder pleases, in every ¿otnmon case of a.note or inland bill; it is not even alleged, that' any reason exists. But it is argued, .the words of the' law are positive to that .effect. They are' not so in my opinion. Clear, it seems to me; that the legislature had not the remotest intention to lay down any indispensable 'form of proof, or. to change the law of evidence, but only to secure, the bánk from loss or dispute, arising out of the previous deálings between the parties to a , note or bill discounted; and from all defence of want or failure .of a consideration. It seems very common in statutes providing for any species of; negotiable paper, against the strict rule of the common law, to declare the intent by express reference to foreign bills of exchange. There are similar words in most, if not all. of our bank charters. So, in the first' and second acts of congress, creating the Bank of the United States. In the very act of assembly in ques- ' tion, the usual bank notes to be issued by the bank of Philadelphia, though not under their seal, shall bp binding and obligatory upon the corporation,' in the like manner, -and with the like effect, as foreign bills of exchange now are. Now, it will hardly be contended, that a note of this. bank, payable to A. B. or bearer, may *341not be sued on by C. D. without the forms of. protesting. But I take the question to be already settled. Ori the same words in the charter of the Bank of Pennsylvania, this court held, in Roberts v. Cay’s Executors, 2 Dall. 260, that a note thus discounted, was placed on the footing of a foreign bill of exchange, only as to the remedy and the exemption from set-off. .And in effect this decision was followed up in the cases of the Farmers’ and Mechanics’ Bank v. Massey’s Executor, 2 Serg. & Rawle, 114, and Wolfersberger v. Bucher, 10 Serg. & Rawle, 10. There-would seem'to be another ground upon which this judgment might be sustained. Admitting that the case requires the’same evidence which would be required to support an action on a foreign bill of exchange, sent from a distant country, yet it seems.to be the settled mercantile law, that neither the copy of the protest, nor notice of it, need be given or sent, in the case of a foreign bill, where the party to be affected happens to be in the country at the time of the refusal to accept or to pay. My opinion is to affirm the judgment.
Rogers, J. and Smith, J., concurred in-the above opinion. Gibson, C. J. and Huston, J. dissented.Judgment affirmed.