The objections made to the judgment of the court below, by the counsel for the plaintiff in error, may be thus stated:

*1341. That no protest for non-acceptance is averred in the' declaration;

2. The declaration does not shew a sufficient presentment for payment;

3. The judgment is for too much;

4. There was no assessment of damages by a jury.

It has long been the settled law of England, that a protest is necessary upon the non-acceptance of a foreign-bill of exchange, and that it is the only evidence which can be received of the fact. The great commercial States of New York and Massachusetts, and many other States of the Union, hold the same law. A contrary doctrine has been maintained by the Supreme court of the United States, in the case of Brown vs. Berry, and Clarke vs. Russel, (3 Dallas’' Rep.) and' in Read vs. Adams, 8 Serg. & Rawle, 356. • The weight of authority is decisively in favor of the necessity of protest, where a foreign bill is presented for acceptance, and acceptance refused, and we feel no hesitation in laying it down as the coi’rect rule.

But the question, in this case, is, whether the averment in the declaration is sufficient. The averment is, “ that the said bill of exchange was shewn and presented to the said Smith & Conklin, at New York, and their ac- ■ ceptance thereof demanded, but the said Smith & Conk-lin did then and there refuse to accept the same, of which the defendants had due notice.” This averment was sufficient, as the refusal to accept could be proved alone by the production of the protest — (See Salomons vs. Stavely, 3 Douglass’ Rep. 298.)

We are also of opinion, that the allegation of presen*135tation. for payment, is sufficient; it is in these words 5 “afterwards, when said bill became due and payable, according to its tenor and effect, to wit, on, &c., the said bill was presented and shewn at the place of business of the said Smith & Conklin, and payment of the same was then and there demanded, according to the tenor and effect of the said bill of exchange, but neither said Smith & Conklin, nor the said defendant, nor any one in his or their behalf, did or would pay the same,” &c. The objection is, that it is not stated that the presentment for payment was in the city of New York ; but the bill is drawn on Smith <fc Conklin, of New York, and the protest states that the demand was at their place of business, and it would be a violent presumption to indulge in, that the demand was not made where they reside, or that they have more places of-business than one.

It is further insisted, that the assessment of ten per cent, damages is erroneous. This argument proceeds, on the supposition that, as the bill was payable in New York, the law of that State must govern, as to the rate of damages, of which, as this was a judgment by default, there could be no evidence. The endorsement of the plaintiff in error was in this State, and the law of this State must govern as to the rate of damages.

The objection, that the clerk could not assess the damages, is equally groundless. The act of eighteen hundred and twelve, which authorises the clerk to compute the interest without the intervention of a jury, on judgments by default dicit, or non sum informatus, has been by this court repeatedly held to extend to an action against the indorser of a note or bill — (See Malone & Co. *136vs. Hathaway, 3 Stewart’s R. 29, and Chapman vs. Arrington, ib. 480.)

There is no error in the judgment of the court below, and it is affirmed.