BURKE V. MCKAY, 43 U. S. 66 (1844)

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U.S. Supreme Court

Burke v. McKay, 43 U.S. 2 How. 66 66 (1844)

Burke v. McKay

43 U.S. (2 How.) 66


By the general law merchant, no protest is required to be made upon the dishonor of any promissory note; but it is exclusively confined to foreign bills of exchange.

Neither is it a necessary part of the official duty of a notary to give notice to the endorser of the dishonor of a promissory note.

But a state law or general usage may overrule the general law merchant in these respects.

Where a protest is necessary, it is not indispensable that it should be made by a person who is in fact a notary.

Where the endorser has discharged the maker of a note from liability by a release and settlement, a notice of nonpayment would be of no use to him, and therefore he is not entitled to it.

This suit was brought in the court below by the endorsee against the endorser of the following promissory note: chanrobles.com-red

Page 43 U. S. 67

"$2,800 Clinton, Miss., January 20, 1837"

"On 1 January, eighteen hundred and forty, we, or either of us, promise to pay Robert Mathews, or order, twenty-eight hundred dollars, for value received."




The note was endorsed thus

"I assign the within note to Robert McKay, and hold myself responsible for the same, waiving notice of demand and protest if not paid at maturity."


"Clinton, 28 April, 1838"

The note was then endorsed by McKay in blank, and passed with two intermediate endorsements, into the hands of Burke, a citizen of Louisiana, the plaintiff below, and also plaintiff in error.

On the trial, the plaintiff read the note and the endorsements thereon; he also read, by agreement of parties, a statement in writing of S. Humphreys, who was absent and sick, for the purpose of proving a demand and notice of nonpayment to the endorser, to-wit:


"State of Mississippi, Hinds County"

"By this public instrument of protest be it known that, on this fourth day of January, 1840, at the request of James G. Paul, teller, the holder of the original note, of which a true copy is here endorsed, I, S.W. Humphreys, J. P., residing in the Town of Clinton, Hinds County, Mississippi, qualified according to law, went to the house of Richard E. Stratton and presented that said note, and demanded payment, which was refused; I also went to the house of Samuel W. Dickson, and demanded payment, which was refused; I also went to the office of Burr Garland, in the Town of Clinton, and there was no person of whom to make a demand."

"Whereupon, I, the said S.W. Humphreys, J. P., and ex officio notary public, at the request aforesaid, do hereby solemnly and publicly protest the said note, as well against the drawer thereof as against the acceptors, endorsers, and all who are or may be concerned, for all exchanges or re-exchanges, costs, charges, damages, and interests, suffered, or to suffer, for nonpayment of said note thus solemnly done and protested. "

Page 43 U. S. 68

"Given under my hand and seal at my office at Clinton the day and year above written."


"Acting Notary Public"

"Notice of protest directed to R. E. Stratton, Mississippi."

"Notice of protest directed to Saml. W. Dickson, at Brownsville, Mississippi."

"Notice of protest directed to B. Garland, at Clinton, Mississippi."

"Notice of protest directed to Robt. McKay, at Holmesville, Pike County, Mississippi."

"Notice to Robert Mathews, directed to Carrollton, Carroll County, Mississippi."

"Notice to Tho. E. Robins, cashier, directed to Vicksburg, Warren county, Mississippi."

"All the above named notices were put in the post office at Clinton by me on 4 January, 1840, before 9 o'clock at night."


The plaintiff also read in evidence the following admission of the defendant:

"The defendant, Robert McKay, in this case, admits that, at and before the first and fourth of January, 1840, he did reside at Holmesville, Pike County, Mississippi, and that the certificate of protest and sending notices &c., made and signed by S.W. Humphreys, and filed in this case, shall be received as the evidence of said Humphreys (who is sick, and cannot attend court), and that said Humphreys, if present, would swear to all the facts stated in the said certificate."

"Defendant also admits that in a settlement with the makers of the note in the declaration mentioned, of and concerning two judgments defendant had against them upon two other notes of the same amount which fell due 1 and 4 January, 1838 and 1839, this note was included, and defendant has released said makers from all liability to him on said notes; but defendant denies that he has ever received of said makers full payment of said note; and that, upon a compromise of all claims and controversies between them, he released said drawers as aforesaid from any liability to defendant. Defendant agrees that this statement shall be read and received upon the trial of this case by the court and jury."

"Nov. 18, 1842 ROBERT MCKAY"

"The defendant admitted his residence was at Holmesville, Pike County, at the maturity of the note; and here plaintiff rested his case. "

Page 43 U. S. 69

"The court instructed the jury that, in order to charge the endorser of a promissory note, the plaintiff must prove that it was protested, on the day of its maturity, by a notary public, and demand made, and notice of nonpayment given by him. That the statement of Humphreys admitted as evidence not proving that fact, they must find for the defendant; whereupon, a verdict for defendant was rendered."

"The plaintiff, by attorney, excepted to the charge of the court before the jury left the box, which exceptions were signed and sealed, and ordered to be made a part of the record, which is done accordingly."



Page 43 U. S. 70


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