Opinion by
Hastings, C. J.If the instrument declared on. is a foreign bill of exchange, there is no doubt the notarial *390protest should have been received as evidence of demand and notice without other proof; if an inland bill, the protest would not be necessary to entitle the plaintiff to recover. . They could prove demand and notice by deposition, or oral testimony on trial.
This position seems to be uncontroverted, and originated for the convenience of commerce. A bill drawn in one state upon a person residing in another state is to be treated as a foreign bill of exchange. 2 Peters, 586. A negotiable promissory note, when put in circulation, partakes of the nature of a bill of exchange ; and if the indorser reside in one state and the indorsee in another state, there appears to be no good reason why the same rule as to the reception of notarial protests as evidence should not be as applicable to the one as the other. But it seems there is an arbitrary difference. In Nichols v. Webb, 8 Wheat. 326, 331, the court say: “ The notarial protest is not therefore evidence of itself in chief of the fact of demand, as it would be in case.of foreign bills of exchange; and, in strictness of law, is not an official act.”
The protest may be admitted, however, not as evidence of itself, but as a part of the testimony of the officer, and will be entitled to the same credit, and rank in the same grade of testimony, as any written memorandum of a witness taken on the occurrence of events, and forms a part of the res gestee. It was error in the court to admit the protest in evidence as proof of demand and notice in any other manner than as a part of the testimony of the notary, as a paper writing used by him to refresh his memory.
But the .error, if any, of the eourt below, in admitting the protest, cannot avail the plaintiffs here. 1. Because it appears to be in fact a part of the notary’s deposition. 2. Because the record shows that demand and notice were proved.
A case ought not to be reversed for the admission of evidence of a secondary character, when the higher evidence is of the same facts at the same time submitted to the jury.
If the secondary evidence be objected to and admitted by the court, and the party at the same time introduce the pri*391mary evidence of the same facts,- the objecting party is not prejudiced, and the error is cured.
It 'is urged by counsel, that because this court have decided at the present term that demand and notice are not necessary in this state to hold an indorser liable on notes made and indorsed in this state, that demand _ and notice were not necessary in this case, and that the plaintiffs ought to have prosecuted the makers to insolvency before the defendants below would become liable.
For aught that appears of record, those events have happened as provided for in the statutes; on the happening of which' an indorsee is entitled to Ms actionagainst the indorsers. But this note was made in St. Louis, Mo., indorsed by the defendants below in Baltimorej Md. The lex loci contractus will govern and define the liabilities of the indorser. We will presume the lex mercatoria prevails in Maryland and Missouri unaffected by statutory regulations. The indorsers are therefore liable on demand and notice, without suit against the maker, as is required by our statute, provided the maker is solvent. ■ j
. It is said the statute relative to promissory notes is but cumulative upon the mercantile law, and the indorser may be sued without first prosecuting the maker, he being solvent. The statute clearly, by any fair construction, renders the assignee of' a note made and indorsed in this state liable only upon the happening of one of the following events :
1. If the maker have been sued,-and in due time prosecuted to insolvency.
2. If the institution of a suit would have been unavailing.
3. If the maker abscond or leave the state when the note should become due.
It appears that the defendants below indorsed the note in blank; this, it is urged, is not a .contract in writing. The law authorizes the holder of a promissory note to fill up a blank indorsement, and-when so filled, it becomes a contract in writing duly signed by the indorsers, and they are answerable to the holders accordingly.. The blank indorsement of the *392note in controversy was so filled by the plaintiffs beloiy, and suit instituted. If the defendant believed that no such firm existed, or individuals composing the same, or that there was any other disability in the plaintiffs to the action, they should have pleaded in abatement. They have waived such objections by the general issue.
u When several plaintiffs sue, as indorsees, on a bill indorsed in blank, they are not bound to prove any partnership, nor any transfer expressly to themselves.3 ? 2 Greenl. Ev. p. 391.
The finding of the jury on the issue joined by one of the • defendants was a sufficient assessment of damages against the co-defendants in default by nil dicit, the cause of action being joined.
Judgment affirmed.