Morgan McAfee, Plaintiff in error, v. Thomas C. Doremus, James Suydam, Cornelius R. Suydam, and John Nixon

Morgan McAfee, Plaintiff in error, v. Thomas C. Doremus, James Suydam, Cornelius R. Suydam, and John Nixon. By the laws of Louisiana, a notary is required to record in a book kept for that purpose,.all protests of bills made by him and the notices- given to'the drawers or indorsers, a certified-copy of which record'is made evidence. Under these statutes, .a deposition of the notary, giving a copy of the original bill, stating a demand of payment; a subsequent protest and notice to the drawers and indorsers respectively, is gfood evidence. The original protest must be recorded in a book. Its absence at the trial is therefore sufficiently accounted for. Where .a joint action against the drawers and indorser -was commenced under the statute of Mississippi (which statute this, court has heretofore, 16 .Peters, 89,. held to- be repugnant to an act of Congress), the plaintiffs may discontinue the suit against,the dn/iwers and proceed against the indorser only. This case was brought up,' by writ of error, from the District Court of the United States for the Northern District .of Mississippi. On the 8th of December, 1839, the following bill of exchange was drawn. $4,000.- Locopolis, Miss., Dei. 8th, 1839. . Ninety days after date of this my. first of exchange (second -of same tenor and date unpaid), pay to the order of Morgan McAfee, four thousand dollars, valué received, and charge the same to, account of yóur obd’t servants. Clymer,' Polk, & Co. Messrs. Keys & Roberts, New Orleans. The firm of Clymer, Polk, & Co., consisted of Isaac Clymer, Benjamin C. Polk,'William C. Ivins, and Hiram Clymer. McAfee indorsed it, and it came to the hands of .the defendants in error, merchants and partners in New York, trading under the firm of Doremus, Suydams, and Nixon. When the' bill became due it was not paid,- and was protested under the. circumstances set forth -in the first bill of .exception. In'May,. 1842, Doremus, Suydams, and. Nixon brought 'a. suit against the four makers and also against McAfee, ■ the. indorser. The action was a 'joint one, as. required by a statute .of Mis'sissipi, passed on the l‘3thof May, 1837, which was ás follows.. “ Section. 1: Be it enacted, by the legislature, of the State of Mississippi,, that in all actions founded upon bills of exchange and promissorynbtes, the plaintiff shall be compelled to sue the drawers and indorsees living and resident in this State in a joint action ; and such suit shall be.commenced in the. county.where the. drawer or drawérs reside, if living in the State ; and if the drawer or drawers bq dead, or reside .out of the State,'the suit shall be brought in the county, where, the first indorser resides. Sec. 2. Be it furthereftacted, that in all cases where.any drawer, acceptor) or indorser shall have died before the commencement of the suit, a separate action may be brought against the representatives of such drawers, indorsers, and acceptors. “ Sec. 3. Be it further enacted, that the court shall receive the plea of non-assumpsit and no other, as a defence to the merits ,*in all'suits brought, in pursuance of this act; and all matters of defence may be given in evidence under the said plea. And it shall be lawful for the jury to render a verdict against part of the defendants, and in favor of the others, if the evidence .before them require such a verdict, and the court shall enter up the proper judgment in such verdicts against the defendants ; which judgments and verdicts shall not be reversed, .annulled, or set aside for want of form. “ Sec. 4. Be it further enacted, that new trials shall alone be granted to such defendants as the verdicts may have been wrongfully rendered against;. and judgments shall be entered against all the other defendants in. pursuance of the verdict! “ Sec. 5- Be it further enacted, that the clerk shall issue duplicate writs to the several counties where the various defendants.-may reside, and shall indorse on all executions the- names of the drawers and indorsers, particularly specifying the first, second, and third. .indorsers. “ Sec. 6. Be it further enacted,- that.it shall be the duty of the sheriff, in all cases, to make the money on the .executions, out of the drawer of drawers, acceptor or acceptors ; and in no case shall a levy be made on the property, of any security or securities, in--dorser .or indorsers, unless an affidavit from some credible person be made and filed among the papers in the case, setting forth that the principal or principals, have no property in this State, out of which the plaintiff’s money and costs can be made ; and in such event the plaintiff may proceed with the executions against the defendants' next liable, and so on until his executions be satisfied. “ Sec. 7. Be it further enacted, that no sheriff, or other officer, shall take more, than one forthcoming bond, in any case, for the same cause of action. “ Sec. 8. ■ Be it further enacted, that any plaintiff shall have the right to discontinue his suit against any one or more of the indorsers or securities, that he may sue in any joint action, before verdict, on payment of the costs that may have accrued by joining said defendant in such suit. “ Sec. 9' Be it further enacted, that in all suits brought under the provisions of this act,, the defendants shall not be allowed to sever in their pleas to the merits of the action, and ho plea of abatement shall be allowed to be filed in any cause, unless affidavit be made of the truths of the facts pleaded in the plea of abatement.. “ Sec. 10. Be it further enacted, that if any plaintiff or plaintiffs -shall cause to be levied an execution,, on any security, or théir in-dorsers' or their property, when the principal has sufficient property in this S.taté_tb satisfy-suc'h execution, the parly so offending shall' be deemed a trespasser, and shall be liable' to an action from the. party aggrieved, and exemplary damages shall, in all such cases, be awarded by the jury trying the same; Approved, May 13, 1837.” ' This Statute was,' in part, adopted by a rule of court in 1839, as follows : — “ Rule XXX. The practice and proceedings in action at law, by the laws of this State, and the rules of practice for the government of the courts of law, made by the late Supreme Court, where not incompatible with the laws of the United States, the rules - which may be prescribed by the Supreme Court of the United States for the government of this court, or with the existing rules of this court, shall be considered the rules and practice of this court: provided', however, and it is hereby expressly understood, that this rule, does not adopt the whole of the act entitled ‘An act to amend the laws respecting suits to be brought against indorsers of promissory notes,’ approved May 13th, 1837 ; but that all of said act, except the tenth section thereof, is, and it is intended to be, adopted.” At June term, 1842, McAfee pleaded the general issue. In June, 1843, three of the four drawers of the bill having beer, served with process and the remaining one not, the suit was dis continued as to the drawers-, and continued against McAfee alone. In December, 1843, the cause came on for trial, when a verdict was found for the plaintiffs. During the trial, however, the two following bills of except' n were taken. First Exception. Be it remembered, that, on the trial of this causé, on this 8th day of June, 1844, the plaintiffs in this case offered in evidence a bifi of exchange ,iri these words : — $4,000=-; Locopolis, Miss., Dec. 8th, 1839. Ninety days after date of this my first of exchange (second of' same tenor and date unpaid), pay to the order of Morgan McAfee, four thousand dollars, value received, and charge the same to account of your ob’t servants. Clvmer, Polk, & Co. Messrs. Keys & Roberts, Nei» Orleans. Having indorsed thereon the following names, three of which were erased : — “Pay to Doremus, ■ Suydams, & Nixon, or order. Morgan McAfee, Charleston P. O., Miss.” “ A. H. Davidson, Charleston P. O., Miss. ; G. Davidson, Charleston P, O. Miss. ; M. L. Cooper & Co.” The plaintiff then proved that the names of A. H. Davidson and G. Davidson had been erased before the maturity .of the bill. ' .The plaintiff then offered in evidence the copy of the^eriginal pro-. test, accompanied by the deposition of the notary public, in these words : — United States of America, Eastern District of Louisiana, City of New Orleans-, ss : — Be it remembered, that on this thirtéenth day of May, in the year of our Lord one thousand eight hundred and forty-four, before me, M. M. Cohen, a commissioner duly appointed on 'the 19th of April, 1842, by the Circuit Court of the United States in and for the Eastern District of Louisiana, under' and by virtue of the acts of Congress, entitled, “An act for the more convenient taking of 'affidavits and bail in .civil causes depending in the courts of the United States,” passed Feb. 20, 1842, and the act of Congress, entitled “ An act in addition to an act entitled ‘ An act for the more convenient-taking of affidavits and-bail incivil causes depending in the courts of the United States,’ passed March 1, 1817, and the act, entitled :£ An act to establish the judicial courts of the United States;” passed Sept. 24, 1789, personally appeared H. B. Cenas, a person of sound min'd and lawful age, a witness for the plaintiff in civil suit now depending in the District Court of the United States, in and for the Northern District of Mississippi, wherein .Doremus, Suydams, and Nixon are plaintiffs, and Clymer, Polk, & 'Co. (drawers), and Morgan McAfee (indorser) are defendants ;..and the said H. B. Cenas being by me firstr carefully,examined,' and cautioned, and sworn to' testify the whole truth and nothing but the truth, did'depose and say, that he is a notary public, duly commissioned and sworn, in and for the city and parish of New Orleans, - State of Louisiana ; that he held said office' on the tenth day of March, A. D. 1840, on which day, at the request of the Commercial Bank of New Orleans, holder of the original draft, of which-the following is a copy, to wit.: — $4,000.J Locopolis, Miss., December 8th, 1839. Ninety days after date of this my first of exchange (second óf same tenor and date unpaid), pay to the order of Morgan McAfee four thousand dollars, value received, and charge the same to ae-. count of your obedient servants. Clymer, Polk, & Co. Messrs. Keys and Roberts, JVeio Orleans. T . ., Morgan McAfee, Charleston P., 0. T . ., Indorsed:- Mesgrs. M< jj_ Co’opER & Co> He, the said notary, presented • said draft to a clerk of the drawees at their counting-room (said drawees not being in), and demanded payment thereof, and was answered that the same could not be-paid ;. whereupon he, the said notary, did publicly and solemnly protest said draft for non-payment, and of protest did give notice to Clymer, Polk, & Co., drawers, and to Morgan McAfee* indorser, and Mi D. Cooper & Co., indorsers,- by letters to the drawer and first, indorser severally written and addressed; informing them of said protest, and that the holders looked to them for. payment; which letters he; the. said notary, did direct to the said drawers and said first indorsers,-respectively, as follows the one for Clymér, Polk, &Co.., drawers, ,to them at Locopolis,' Mississippi,- and that - for the said Morgan McAfee, the first indorser,' to him at Charleston P. O., Mississippi; and by delivering tháf for the last indorsers, to themselves. Which lettfers hé, the said notary,- did put into the post office at New Orleans aforesaid, on the day and date of said protest. All of which was done under the hand-of said notary, and recorded in presence of competent wit-nessés/and in diie form of law. ■ -The notary’s fees for said, protest and notices amounted to $3.50. The document A., M. M. Cohén, United States commissioner,' is sworn to by me, H. B. Cenas, Notary Public. -United States of America, North.Circuit and Eastern District of Louisiana, City of New Orleans, ss : — I, M. M. Cohen, ¿'commissioner duly appointed on the 19th of April, 1842, by the Circuit. Court of the United States for the Ninth Circuit and Eastern District ■ of Louisiana, under and by virtue .of-the acts of Congress, entitled {< An act for the more- convenient taking of' affidavits ánd bail in civil causes, depending in the courts of the-.United States,”, passed February 20th, 1812, and the act . of Congress, entitled c‘ An act in addition to ah act entitled ‘ An act for the more convenient .taking of - affidavits and bail in Civil causes depending in the. courts of the United States,?” passed March, lstj 1817, and the act entitled “ An act to establish the judicial courts of the United States,’’ passed September 24th, 1789, do hereby, certify, that the reason for taking the foregoing deposition is, and the fact is;, that the witness lives in New Orleans, State of Louisiana, more than one hundred miles, from Pontotoc; Statejof Mississippi, the place, of trial of . the cause for and in which said deposition is táken and is necessary? I. further certify, that, nó notification was made out. and served on the' defendants, or adverse parties, their agent or attorney, to be present at the taking of the deposition,, and to. put -interrogatories . if he or they may think fit, and that .no .notification of the time, and'place of taking the said deposition Was made out and served on said defendants or adverse párties", because neither the said adverse parties, nor any attorney ór .agent of said -adverse parties was, at the time of taking said deposition, within (Í0Q) one hundred miles of the said city of New Orleans, the place of - taking the said deposition. I further certify, that, oil this thirteenth day of May,. A,. D. 1844,1 was by'the witness, who is of sound mind and lawful age, and the witness was by me. carefully examined and cautioned, and sworn to testify the whole truth, and the deposition' was by me reduced to writing in the presence of .the witnessand after carefully reading the same to the witness; he subscribed the same in my presence. I have retained the' said deposition in my possession for the. ■purpose of sealing up,, directing, and forwarding the same with my own .hands to the court for -which the same was taken. I further, certify, that I am not of counsel or attorney to either of • the parties in said-deposition and,caption named, or. in any way interested'in the event of .'the said civil- cause naméd in the caption. ' In testimony whereof, I have hereunto set my hand and seal, the words ‘‘‘ aré. plaintiffs ” being first interlined on page 1, ante. M. M.-Cohen,. [l'.'s.]' -17» S. Commissioner Circuit (Md District Court .United States for the Ninth Circuit <md-Eastern District of Louisiana. -Commissioner’s fee, 'flO,' 00 ) Paid % kintiffSi .¡Notary tor copy annexed, 2 59 ) J 1 M;M, Cohen, 'U. S. C. TJnited States of America, State of Louisiana: — ' By this public instrument1 of protest be it. known that, on this, tenth'day of March,--in ihe year one thousand eight hundred and fórty,,at the request of the--Commercial Bank of New Orleans,' holder of the original draft, whereof a true copy is on the -reverse hereof-.written,-1,; Hilary Breton Cenas, a notary public .in and for-the.éity and parish.of New -Orleans, State, pf.Louisiana aforesaid^ duly, commissioned and sworn,.presented said draft.to a clerk of the' drawees .'at their counting-room .(said drawees not being in), and. demanded -payment thereof, and was answered that -the same.could' not be paid. 'Whereupon Í, -the said notary, at the request afore-, said, -did' protest, and, by these -presents.' do - publicly and' solemnly protest,- as well against, the -drawer or maker-of-the- said draft; as against aU others whom it doth or may concern, for all exchánge, reexchange, damages, cos-ts, charges,,and interests', suffered of to-be''suffered-,. for-want of payment of the said draft.. Thus done and protested in the presence of-Law.' Doman and Ernest Granet, witnesses.' ... In testimony whereof, I grant these .presents .under my signature, ft s 1 an&the ipapréss.of my Seal- of office, at the city of New f ' Orleans, 'on the'day and year first above, written. . H. B. Cenas, Notary Public. Original signed — Law. D-ornan, E,.Granet. • $4,000. Locopolis, Miss., Dec^Sth, 1839. Ninety day^'after date, of this my first of. exchange (second of $áme tenof ¿nd daté unpaid) ,:.pay t'o.thé qrder .of Mprgan'MeAfee four thousand dollars, value received,, and charge the same to account [of] your obedient servants. CivMEEj Polk, & Co. Messrs. Keys & Roberts, JVeio Orleans. Indorsed, — Morgan McAfee, Charleston P. Qi, Miss'., M. D, Coopér& Co: I, the undersigned notary, do hereby certify that the parties to' the draft, whereof a true copy is émbodied in the accompanying act of protest, have been duly notified of the protest thereof by letters to them by me written and addressed, dated on the day of said protest, and served on, them respectively this day, in the manner following, viz. by depositing those for the drawers and first in-dorsers. in the post office in this city on the same day as this protest, directed to them respectively as follows : — that for .the drawers, to them at Locopolis,- Miss. ; and that for the first indorser, to him' at Charleston P. O., Miss. ; and' by delivering that for the last indorsers to themselves. In faith whereof, I hereunto sign my name, together with Law. Doman and Ernest Granet, witnesses, at New Orleans, this 11th. day of March, 1840. Original signed, — Law. Doman, E. Granet. ■H. B. Cenas, Not. Pub. . I certify the foregoing to be a trae copy of the original protest^ draft, and memorandum of the, maimer in which the notices were served on file and of'record in my office. In faith! whereof I grant these presents, under my signature, and • the impress of my seal of office', at New Orleans, on this [l. s.] ninth day of November, in the year pf our Lord one thousand eight hundred and forty-three. H. B. Cenas, Not. Pub- Sworn to before me. M. M. Cohen, U. S. C. To the introduction of which copy the defendant by counsel-objected, but such objection was overruled by the court,, and said copy allowed to be read'; to which opinion of the court the. defendant excepted', -and this his bill of exceptions, before the - jury retired from the box, was signed and sealed by the court¿ and or-' dered to be made a part of the-record. S. J. Ghols'on. [seal.] Second Exception. The second bill of. exceptions, referrej] to the statute and rale abbvemeritioned, ahd to the discontinuance of the suit against the drawers of the bill, after three Of' them had been served with process. A motion was made in arrest .of judgment, which Was overruled by the court, to which overruling the second exception was taken. : The cause was argued by Mr. Chalmérs and Mr. Coxe, for the .plaintiff in error, and by Mr. Stanton and Mr. Z. 'Collins Lee, for the defendants in error. Mr. Chalmers and Mr. Coxe contended that the paper admitted in evidence by the court below, purporting to be a copy of the protest of the bill of exchange sued upon, was not duly proved to have been á copy of the protest of the bill of exchange, but a copy of an entry, in the notary’s book, and that it was not duly proved, evén as a copy of the, entry in the book. ■ Secondlyj if proved, as a copy, it.was not admissible ás evidence, without laying ground for'it'by showing the loss of the .original, which was not done. •A protest is, properly, speaking, a solemn declaration on behalf of the holder'against any loss to be-sustained by non-acceptance or non-payment (Story' on .Bills, §276,-p. 301), must'be in writing, signed, and sealed by thé notary (Chitty on Bills,. 490, 642), and .annexed to the bill itself, if it can be obtained, or otherwise a copy (Chitty on Bills, -362), with all the indorsements transcribed verbatim, with the reasons given by the, party why he does not honor the bill; and this- is so. indispensably necessary, by the custom .of merchants, that it cannot be supplied by witnesses- or .oath' of the party, or in any other' way, and, as is said, is part of the constitution of a foreign bill of exchange, because it • is the solemn declaration of-a notary, who is a public officer, recognized in all parts-of Europe, that a due presentment and dishonor has taken-place, and all counfries give'credit to his' certificate-of the facts. Chitty.on Bills, 490. It must be made according' to the1 laws of the .-place where jhe payment, ought to- have been made.- Story on Bills, p. 105,. §278 -; Chitty on . Bills, 490.- By the, laws of Louisiana, where this bill was payable, .it is - enacted, page. 41, Ballard and Curry’s Digest,-Laws of Louisiana,.that ■ “ The' notaries shall keep a separate'book in which they shall .transcribe and record, by order of'date,, all the protests by them made, minutes of notices, &c., &c., made by them, which declaration,-. duly recorded under signature of suhh. notary and -two witnesses',” &c. •This book, from which the copy admitted was obtained, is.anew transcription of the original-protest, — a copy, wholly inadmissible itself, without' accounting for the non-production of' the .original, and yet the court admitted a copy of this copy, without showing the loss, destruction^ or that the original was not within the control ..of the party offering, the copy. See Sebree v. Dorr, .9- Wheaton, ■ 558 ; Brooks v. Marbury, 11 Wheaton, 78. Séco.ndly, the court below erred in overruling- plaintiff in error’s motion to arrest' the judgment. • This -suit in the court- below was commenced jointly against the dráwérs and indorsers of the bill-of. exchange sued upon under and by virtue of.the' provisions of an-act of the Legislature of the State of Mississippi; and a'long count of the declaration is framed upon that act,, which provides, - thatin all actions founded, upon bills of exchange and promissory notes the. plaintiff shall be compelled;to sue. thé drawers and indorsers living and resident within the State in a' joint action.?’ : Act of May 13, 1837, Laws, of’Mississippi, 717 ; and by a rule- of the Disr trict .Courtsof the United States for the State, of Mississippi, this act was adopted, (see Rule XXX.), and, .so ,far- as it- is not inconsistent with the laws of Congress and the . fules of practice prescribed by the Supreme Court .of the United States, became., by that rúlé.the law of the court.. This being th.e case-unless the act of the legislature of Mississippi, in its application to. this casé, was incompatible with the laws of Congress, or . the rules prescribed by the. Supreme Court of the United States, or the exr isting rules of .the District Court for Mississippi, tbe dismissal entered' as. to defendants below, Isaac Clymer, William C. Ivins,' and Benjamin C. .Polk, the makers, and taking judgment against Me Afée j the plaintiff in error'and indorser of the.bÜl suéd upon, was manifest error; for which die judgment should have' been arrested. See; Wilkinson and Turney v. Tiffany', Duvall,Co., 5.Howard’s Mississippi'Reports-, 411. Was the aGt of Mississippi, adopted by the District Court 'in its application to this case, a violation of the judicary act of 1789, ch. 20 ? The eleventh section of that act gives jurisdiction -to the Circuit Courts of suits betwééii a citizen of the State where.the suit is brought and a citizen of another State;, and excepts “.any suit' to recovér the. contents of any promissory noté, or. other'chosen action in favor of an assignee, unless the suit might have, been prosecuted in such court to recovér the contents, if no assignment had been made except in cases of foreign bills of exchange.”- The foundation.of this action was a foreign bill of exchange, and although thé drawers and indorsér all resided in the State of Mississippi, it came within thé exception of the act of Congress, and the District Court-neither- enlarged or diminished , the jurisdiction of .thé court by adopting the rule, nor is the rule in its application to this case incompatible with the laws of Congress, the rules of practice prescribed by .the Supreme Court of the United States, or- the existing rules of tb.e District Court.' The case of Keary et al.. a. The'Farmers and Merchants’ Bank of'Memphis,16 Peters, 89,' was founded upon a promissory note,' the makérs' and indorsér all living in Mississippi, and.the'attempt, under this rule, ■ to join them in the same action was pronounced by this court a violation of the judiciary act, in giving a jurisdiction to the District Court which' that act had not conferred, and that, therefore,1 in that casé the rule, was void. Not so -however in this case, — the foundation, of this suit being a foreign bill of exchange, the application of the rule violates no law of Congress, nor is it incompatible with any. rule prescribed by this court. The rule established 'by the District Court, adopting the statute of Mississippi, is of great value to the. citizens of that State; and, so far as it can be made applicable to the just jurisdiction of the District Court of the United States in that State, sound-public policy, respect for her public, functionaries, and the rights and interests of the parties .litigant in the federal tribunals of the State, appeal strongly to. this court to have the act fairly and fully executed. Mr., Lee and -Mr. Stanton contended that the proof offered was sufficient; that the object of ¿ protest was,-accomplished in giving the indorser notice ; that certified copies of a protest were gener-. ally admissible ; that a notary cannot serve the original protest upon each one of the iñdorsers ; that the absence of the original at the triad was sufficiently accounted for by its being on file in the notary’s office, and cited Story on Bills, 301, 30420 Wendell, 82; 8 Wheaton, 333 ; 4 Term Kep. 175 ; 2 Peters, 179. As to. the second exception, they contended: that the plaintiffs' living in New York hád a right to sue the indorser and drawers,' which right could not bé taken away»; that they had a right to discontinue the aetion as they did ; that the plaintiff in error was estopped from making this objection ; that this court has rejected the statute of Mississippi, and cited 1 Peters, 78 ; 11 Peters, 83-85-; 16 Peters, 94 ; 2 Howard,.343, [MAJORITY — Mr. Justice McLEAN] Mr. Justice McLEAN delivered the opinion of the court. This case is brought before this court by a writ of error to the District Court of the Northern District of Mississippi. The suit-was commenced on a bill of exchange against Isaac Clymer, Benjámin C. Polk, William C. Ivins, and, Hiram C.lymer, late merchants and partners in trade, under the firm and stylé of Cly-mer., Polk, & Co.,.makers,. and MorganMcAfee,indorser. •Thepro-cess was served on Polk and McAfee-. The latter-pleaded the general issué, and -an alias summons was'issued against the defendants not served. This writ was served on Isaac Clymer and William C Ivins';, and .at the succeeding June term the plaintiffs, by leave of the court, discontimjed the suit against Clymer, Polk, &. Co., leav ing McAfee, the indorser, the only defendant. Oh the trial the plaintiffs offered the deposition of H. B. Cenas, a notary public at' New Orleans; to prove a copy of the. protest, which was objected to by the defendant; but the court admitted the' evidence, add- this constitutes the first exception. By the Louisiana acts of 1821 and 1827; the notary is required to record, in a book kept for that purpose, all protests óf bills made by him and the notices given-to the drawers or indorsers ; a certi-f e copy, .of which record is made evidence. • Under these statutes it is held, in Louisiana, that “ a certified copy of a protest is sufficient without producing the. original.” Whittemore v. Leake, 14 Louisiana Reports, 394. • It is admitted that in respect to foreign bills of exchange the notarial certificate of protest is of itself sufficient proof of the disV honor of á bill, without any auxiliary evidence. Townsley v. Sumrall, 2 Peters, 179. But the rule is different, undér the principles of the common law, in regard to inland bills. The pfotest .offered is certified, under'the seal of the notary, “to be a true copy of the original protest, draft, and memorandum of the manner in which' the notices were servéd on file and,of record in his office;” But the deposition of Cenas, the notary, was relied on as proving the protest and notice, The exception taken was not to the deposition, but to the copy of the protest. It is insisted that the deposition does not identify the protest, and if it does, that it is .not.' competent to. prove the copy without accounting for the homproduction of the original. In regard to the latter objection,'it appears from die statutes above cited, that the notary records the protest and the manner in which notice was given, and this record is, in fact, the original. It is presumed that nothing more, than a short .memorandum of the demand. and. notice is taken, from' which the record 'is made in due form ; so that there is, strictly* no original except that which is of record;. And. a copy of this' is made, evidence by the statute.. Ndw this sufficiently accounts for the non-production of the original j and a sworn or a certified copy is the only evidence of the protest which can be produced. And we think that the copy of the protest wás properly considered as a part of the deposition. • It was offered in connection, with it, and is referred to as “ Documeiit A.,” as no other meaning can be given to. that, reference. . The commissioner who took” the deposition states, the copy was sworn to before him, and the exception was to the “ copy;” and.not that it was no part of the deposition.’ And the original being a matter of. record, and of course not within the power of the. plaintiffs in the Circuit Court, a sworn copy was admissible'as evidence. After the verdict was rendered against McAfee, the indorser, a. motion was ihade in arrest of'-judgment-on the. ground that it appeared from the return of the marshal* the- process had been duly servéd on three of the partners of . the firm pf Clymer, Polk, & Co., who were the drawers of the bill, and that the suit had been discontinued as to them ; which motiop the court overruled, and: to which the defendimt excepted. ,. It .appears that :the district judge, by a rule .of court; adopted . nine of the first sections of the statute of. Mississippi, entitled, “ An .actio amend the laws respecting suits to be brought against indor-sers of promissory nptés,” &c., approved,13tk May4837, Which required suit to be brought against the drawers and indorsers of a bill of exchange jointly. Under this statute the suit was brought against the drawers and also the indorser of the bill. ' This statute, as adopted by the district judge, was brought before this court in the case of Keary and others v. The Farmers and Merchants’. Bank of Memphis, 16 Peters, 89, in which the court held that “ the law-.of Mississippi is repugnant to the provisions of the( act.of Congress, giving jurisdiction to the courts of the United States.” We see no objection, in principle or in practice, to the discontinuance of the suit against the drawers of the bill. Their liability was distinct from that of the indorser! In no respect could the in-dorser,be prejudiced by the discontinuance. As a matter of course ■it was permitted at the cost of the plaintiffs. In. the case of Minor et al. v. The Mechanics’ Bank of Alexandria, 1 Peters, 46, the court held, that when the defendants sever in their pleadings, a nolle prosequi ought to be allowed against one defendant,” that “ it is a practice which violates no rules of pleading, and will generally subserve the public convenience. In the administration of justice, matters of form not absolutely subjected to authority may well yield to the substantial purposes of practice.” The judgment of the Circuit Court is ¿firmed, with costs.- Order. This cause came on to be heard on the transcript of the récord from the District Court of the United States for the Northern District of Mississippi, and was argued by counsel. On. consideration whereof, it. is now here ordered and adjudged by this court, that the judgment of the said District Court in thisr cause be and the same is hereby affirmed, with costs and damages, at the rate of six per- centum per annum.