within the proper hours. And if it was not, the other party would doubtless be allowed to disprove it by counter evidence.

How can such a case, then, be distinguished in principle from this?-except that there is much less in the usual form of protest from which to infer that the bill was presented in legal hours, than there is in this protest from which to infer that the bill was present when the demand was made. I am the more inclined, also, to the opinion, that this protest is competent evidence, because, under a special law in Louisiana, passed March 13th, 1827, such protests have been adjudged sufficient. Their law uses the word "demand" when describing what the protest shall contain, and such a protest is there allowed to go to the jury as evidence from which to infer that the note was present. (Nott's Executor v. Beard, 16 Louisiana R., 308.)

The bill now in dispute was on its face payable in Louisiana; and hence the principles of commercial law require that the protest be made at the time and in the manner prescribed by that state. (Story on Bills of Exchange, § 176; 1 Chitty on Bills, 193, 506; Story's Conflict of Laws, § 369.)

But whether the statute of Louisiana prescribing what protest shall be sufficient ought to be considered as affecting anything beyond the evidence of protest in its own courts, is not very clear on principle. (See cases, Story on Bills, § 172.)

Hence, in forming an opinion, I have placed it mainly on general consideration, though in the construction of a Louisiana statute, which clearly affected the contract, and not the evidence; and where the judgment of its court clearly rested on the statute alone, about which some doubt exists, it ought unquestionably to control us in respect to contracts made or to be fulfilled there, even, if a departure from the general principles of commercial law. I wish, also, to avert some serious consequences that I apprehend may result from the decision of the majority of the court in several of the states of the Union.

Bills of exchange drawn in one state on persons in another must be considered, under the previous decisions of this court, as foreign bills. (Townsley v. Sumrall, 2 Peters, 179, 586, 688; Lonsdale v. Brown, 4 Wash. C. C. R., 87, 153; 1 Hill, 44; 12 Pick., 283; 15 Wend., 527; 5 Johns., 375; Dickins v. Beal, 10

Peters, 579.) Demand of payment, then, cannot be proved in suits upon them out of the state where presented, unless by a written protest, according to the cases before cited.

Whenever the protest, then, in such case, does not state in detail a presentment or presence of the bill, though stating a demand, refusal, and no objection, the protest must, as in this decision, be ruled out as incompetent evidence; and the same decision virtually implies, that no other evidence except the written protest is admissible to show that fact, or indeed any fact which may be omitted by accident or otherwise in the written protest, and that no inference can be admitted to be drawn from the protest as to presentment, when only a demand, refusal, and no objection are stated, as here. These consequences, with others before named, I would avoid, by making the protest competent evidence, and when it showed a demand, refusal, and no objection explicitly, as here, would leave it to the jury, from that and the other circumstances, to say whether they were or were not satisfied that the note was present.

In this way it is easy to reconcile full action of the jury on the facts with that of the court on the law, and this, too, without any innovation or change in the rule as to commercial paper, or any violation of adjudged cases, but rather in conformity to them and to several strong analogies.

This court have in other cases gone still further, and held it proper even to expand or enlarge the rules of evidence in certain exigencies. In Nicholls v. Webb (8 Wheat., 332), the principle laid down by Ld. ELLENBOROUGH, in Pritt v. Fairclough (3 Camp. R., 305), as to the rules of evidence, was adopted, namely, "That they must expand according to the exigencies of society." And in the Bank of Columbia v. Lawrence (1 Peters, 583), speaking of a rule as to diligence, THOMPSON, J., says,-"For the sake of general convenience it has been found necessary to enlarge this rule."

But all I ask here is to go as far as the existing rule of evidence seems to justify, and let reasonable inferences and presumptions be made by the jury from all that is stated in the protest, and thus decide whether the note was not probably present when the demand was made.

SALT SPRINGS NATIONAL BANK v. BURTON.

58 N. Y. 430. 1874.

Appeal from judgment of the general term of the Supreme Court in the fourth judicial department, affirming a judgment in favor of plaintiff entered upon the decision of the Court upon trial at circuit without a jury.

This action was brought upon a promissory note made by defendant Phelan and indorsed by defendant Burton, who alone defended. The note was made payable at the First National Bank of Waterloo.

The Court found the following facts, among others: That it was the ordinary custom of said bank to commence its business at nine o'clock in the forenoon of the day and to close the same at four o'clock in the afternoon; that on the day said note fell due the defendant Burton was ready to pay the same, and sent Phelan, the maker of the note, to said bank several times during banking hours to see if said note was there and ascertain the amount of the same, but he was informed each time that the note was not in the bank; that on said day Thomas J. Leach, the cashier of the plaintiff, went to Waterloo, having said note in his possession, but did not arrive there till about five o'clock in the afternoon. He went to the said bank and obtained entrance. He found therein Myndert D. Mercer, who was the cashier of said bank and also a notary public. He then and there presented to said Mercer said note and demanded payment thereof, and payment was refused for the reason that no funds had been left with the bank to pay the same; thereupon said Mercer protested said note. This was the first time that said note was presented to said bank for payment on that day.

As a conclusion of law, the Court held the defendant Burton liable and directed judgment for the amount of the note.

RAPALLO, J. When a note is made payable at a bank, the general rule is that in order to charge the indorser the note should be presented for payment at the bank during its customary business hours, for if the holder goes to the bank after those hours and finds it closed or no one there authorized to

answer to the demand, he can make no valid demand and the indorser will be discharged: Parker v. Gordon, 7 East. 385; Byles on Bills, 205, 206. In other cases the holder has the whole day to present the bill or note, the only limitation being that he must present it at a reasonable hour, and this may depend upon the circumstances of the case: Wilkins v. Jadis, 2 B. & Ad. 188. But even in the case of paper payable at bank, if after business hours the holder obtains admittance and finds in the bank a person authorized to answer, a demand of such person and refusal for want of funds will in general be sufficient: Bank of Syracuse v. Hollister, 17 New York, 46; Byles on Bills, 212 (ed. of 1836); Shepherd v. Chamberlain, 8 Gray, 225; Flint v. Rogers, 15 Maine, 67; Allen v. Avery, 47 Ib. 287; Henry v. Lee, 2 Chitty, 124; Garnett v. Woodcock, 1 Stark, 475.

In the present case the customary business hours of the bank at which the note was payable ended at four o'clock P. M. The note was not brought there for presentation until five P. M., but the holder was then admitted into the bank, and there found the cashier, of whom he demanded payment, which was refused on the ground that no funds had been left with the bank to pay the same. The only question raised in the case is as to the sufficiency of that demand under the special circumstances.

It is not disputed that the cashier was a proper person of whom to make the demand, but it is considered on the part of the appellant that there exists a feature in this case which distinguishes it from all those in which a demand after business hours has been held sufficient, viz., that up to the close of business hours on the day of the maturity the indorser had been endeavoring to find the note for the purpose of paying it, but that it was not at the bank, and it is claimed that if it had been presented at the bank during business hours it would have been paid. This claim is founded upon the finding of the Court that on the day the note fell due the indorser was ready to pay it, and sent the maker to the bank several times during banking hours to see if the note was there and ascertain the amount of the same, but was informed each time that the note was not in the bank.

It was stipulated on the trial that these inquiries were made to enable the indorser to pay the note, and that they were continued up to the time the bank closed, and we think the fair interpretation of the finding is that Burton, the indorser, had the funds wherewith to pay the note and endeavored to do so, but was prevented by the failure of the holder to present the note at the bank during business hours. The question now before us is whether those facts make the case an exception to the general rule that a valid demand can be made after business hours if the holder obtains admittance into the bank and there finds a person authorized to answer to the demand.

Had the maker gone to the bank prepared to pay the note, and waited there for that purpose until the close of business hours and then left, or had he placed funds in the bank and allowed them to remain there until the close of business hours, and then withdrawn them in consequence of the non-presentation of the note, we are of opinion that a subsequent presentation for payment would not have been sufficient to charge the indorser. The leading English case upon this subject is Parker v. Gordon, 7 East. 387, decided in 1806, in which Lord ELLENBOROUGH says: "If a party choose to take an acceptance, payable at an appointed place, it is to be presumed that he will inform himself of the proper time for receiving payment at such place, and he must apply accordingly, and, if by going there out of due time the bill be not paid, it is his own fault, and he cannot proceed as upon a dishonor of it. It is fishing for the dishonor of a bill made payable at a banker's to present it there for payment at a time when it is known, in the usual course of business, that it cannot be paid."

..

This decision was followed in 1813, in Elford v. Teed, 1 Maule & Selw. 28, where the business hours of a bank are compared to the horae juridicae of the Courts of Justice.

The first case in which this rule was qualified is Garnett v. Woodcock, 1 Starkie, 475, where Lord ELLENBOROUGH, in 1816, held, at nisi prius, that a presentment at a banker's after banking hours was sufficient, provided a person was stationed there by the banker to return an answer.

Upon these cases are founded all those which follow upon the