to buy provisions more than six months earlier had no tendency to show agency for receiving demand of payment on a promissory note at the time in question at a place not shown to be either the residence or place of business of the maker.

Evidence was admitted against the exception of the defendant to the effect that the plaintiffs asked the man who came from the stable about the Davidsons and he answered that Mr. and Mrs. Davidson had gone to Boston and would be back, he thought, about 6 o'clock, and that he "was in charge." This evidence doubtless was admitted to show that the maker of the note was "absent or inaccessible" within R. L. c. 73, § 89, subd. 4. But it was not competent for this purpose. The man's bald assertion made out of court and in the maker's absence that he was acting as agent for the maker, ought not to have been received. Haney v. Donnelly, 12 Gray, 361. That being out of the case, there was nothing to show that he had any relation to the maker. While his own testimony, if called as a witness, might have been competent to show where the maker was, the repetition in court of what he said was the merest hearsay.

It cannot be said that these errors of law did the defendant no harm. For aught that appears, the judge may have found that there was a sufficient demand, since he denied a request for the second ruling, which was a correct statement of the law.

It is not necessary to determine whether the evidence of a promise to pay made by the defendant after the due day of the note (Glidden v. Chamberlain, 167 Mass. 486, 494, 46 N. E. 103, 57 Am. St. Rep. 479) showed that the promise was made under such circumstances of knowledge of the material facts as to justify a finding of waiver of demand (Parks v. Smith, 155 Mass. 26, 33, 28 N. E. 1044). No finding was made upon this point and the evidence may not be the same at another trial.

The other questions argued need not be considered.

Petition for establishment of exceptions allowed.
Exceptions sustained.

SECTION 4.-PROTEST

COMMERCIAL BANK OF KENTUCKY v. WILLIAM H. BARKSDALE & CO.

(Supreme Court of Missouri, 1865. 36 Mo. 563.)

This was a suit instituted March 13, 1861, on a bill of exchange, dated at St. Louis, Mo., September 4, 1860, made by William H. Barksdale & Co., in favor of John F. Darby (acceptance waived), on the Park Bank, New York City, for $10,000 at four months, indorsed by Darby. The petition averred due protest and notice; also that William

H. Barksdale & Co. had no funds at the Park Bank, and that Darby knew this at and before the maturity of said bill.

Defendants, William H. Barksdale & Co., denied that the bill was duly presented at maturity to the Park Bank for payment, or that such payment was refused, or that the bill was duly protested for nonpayment, or that defendants had any due or legal notice of any such facts.

The case was tried before the court, sitting as a jury, on the 24th January, 1863, and judgment was given for the defendants.

By the bill of exceptions, it * * * appeared that the bill was protested on the 5th January, 1861; that payment was demanded by Turney, a notary; that the protest was by Varnum, notary public, and that after the commencement of this suit Turney made out a notarial act of protest, dating it back to January 5, 1861; * that Turney and Varnum were partners. The court refused the following instruction which was requested by the plaintiff: "(9) It is not necessary to the validity of a certificate of protest that it be drawn up on the day of demand and refusal of payment, nor is it necessary that such certificate, or a copy thereof, should be sent with the notice. It may be drawn up when called for, or at any time before trial, provided the bill was properly presented for payment by a notary public at the request of the holder, and payment demanded and refused, and a proper notice of the protest is given and in due time."

The court gave the following instructions at the request of the defendants: "(3) To make a valid presentment by a notary, it is necessary that such notary make a personal presentment and demand; and a protest of a bill by a notary who did not make such presentment and demand is insufficient to hold the indorser." 87

HOLMES, J., delivered the opinion of the court.

The decision of the case turns mainly upon the validity of the protest. The bill is to be considered as a foreign bill. St. Bills, §§ 22, 23. In cases of foreign bills of exchange, the rule is too well. settled to admit of question that there must be a protest of the bill by a notary public, in all places where such officer is at hand. Sto. Bills, § 276. The notarial protest is evidence of presentment, demand, and refusal to pay the bill, at the time and in the manner therein stated. This rule of the law merchant is recognized by statute in this state (Rev. St. 1855, p. 298, § 20); and so essential is the production of a protest in all cases of foreign bills that this evidence of presentment, demand and refusal cannot be dispensed with, nor supplied by other evidence of the same facts, as may be done in cases of inland bills. Sto. Bills, § 276. It is equally well established that the presentment and demand must be made in person by the same notary who protests the bill. It cannot be done by a clerk, nor by any other person as his

37 The statement of the case is abridged, and part of the opinion omitted.

agent, though he be also a notary. The protest is to be evidence of the facts stated in it, of which the notary is supposed to have personal knowledge, and credit is given to his official statements by the commercial world on the faith of his public and official character.

In court, the instrument speaks as a witness. Such statements made merely upon the information of another person would amount to hearsay only, if the notary were himself upon the stand as a witness. The notarial protest must state facts known to the person who makes it, and he cannot delegate his official character or his functions to another. Edw. on B. 466; Leftley v. Mills, 4 T. R. 174; Carmichael v. Bank of Penn., 4 How. (Miss.) 567, 35 Am. Dec. 408; Sacrider v. Brown, 3 McLean, 481, Fed. Cas. No. 12,205; Onondaga Co. Bank v. Bates, 3 Hill (N. Y.) 53; Chenowith v. Chamberlin, 6 B. Mon. (Ky.) 60, 43 Am. Dec. 145. The presentment and protest are governed by the law of the place where the bill is payable, and on this principle, it has been held that where the statute law of the state (as in Louisiana) authorizes notaries to appoint deputies, a protest made by such deputy, duly appointed, would be recognized as sufficient. Carter v. Bank, 7 Humph. (Tenn.) 548, 46 Am. Dec. 89. But no case seems to have gone farther than this: Such deputy may be considered as having a semiofficial character, and sufficient authority by force of the statute; but without some change in the general rule of law, one notary can neither delegate his functions nor impart his own official character to another. Here, two notaries were in partnership in general business, and one of them undertook to present the bill and make the demand, and the other to draw up the protest and give the notice. They were both notaries, but as such they were distinct public officers, and there can be no partnership in such matters. No law or custom was proved to have existed in the state or city of New York which changes the general rule of the law merchant on this subject.38 It must follow that the protest made by Varnum can have no validity; nor will that made by Turney any more avail. It seems to be clearly established by the general current of authority that the protest must be made on the same day with

88 "In the absence of any established rule of law in this state, by decision of the court or by any statute, requiring a demand to be made by the notary in person, it is not perceived why a usage such as was approved was not admissible as proof upon the subject.

"The practice in England is to present and demand by a clerk of the notary, and we are not referred to an English authority holding such presentment illegal where the usage so to present was established.

"Chitty on Bills, in his last edition (10th Eng. Ed. 355, note 4). sustains this usage, and says it is not questioned in any English case, and 'is amply justified by the law of principal and agent.' I take this from 1 Par. on Bills, 360, as this edition of Chitty is not accessible to me. This is said after correspondence upon and examination and discussion of the subject, and is free from the doubt in other editions, based chiefly upon a doctrine of Mr. Justice Buller, in Leftley v. Mills, 4 T. R. 175, an action on an inland bill.

"In Brookes' Notary of England (3d Ed.) 71, published in 1867, it is stated: 'Before the protest is made it is the custom in England to cause the bill to be presented either by a notary or by his clerk (in general his clerk presents it), and acceptance to be demanded.' As to the admission of usage, see Nelson

the presentment and demand, though a noting of the protest on the bill itself may be regarded as an incipient protest, or preliminary step towards a protest, which may be completed afterwards, at any time, by drawing up the protest in form. Here there was no noting of the bill for protest, nor any memorandum marked on the bill, by Turney; nor is there any proof of any distinct note, entry, or memorandum of protest, made by him on that day, in any other way than upon the bill itself. It would appear that he did not make the demand for the purpose of protesting the bill himself, but as the agent of his partner, the other notary. He neither protested the bill, nor noted it for protest, at the time; and his drawing up of the protest, long afterwards, must be regarded as having no basis of contemporaneous fact or present authority, and as being entirely void. Byles, Bills, 201-203; Sto. Bills, § 283; Leftley v. Mills, 4 T. R. 174.

Judgment affirmed.

SECTION 5.-NOTICE OF DISHONOR

SMITH v. MULLETT.

(Nisi Prius, 1809. 2 Camp. 208.)

Action against the indorser of a bill of exchange drawn by one Mills, payable to his own order, and indorsed by him to the defendant, by the defendant to one Hefford, by Hefford to one Aylett, by Aylett to the plaintiff, and by the plaintiff to one Lowe.

The bill became due on Saturday, May 19th, when it was in Lowe's hands. He and all the parties to it reside in the metropolis. On Monday, the 20th, Lowe gave notice to the plaintiff that the bill had been dishonored. On Tuesday afternoon, a few minutes past 5, the plaintiff's clerk put a letter into the two-penny post office, giving notice to Aylett. This letter having been put in so late, according to the course of the two-penny post, was not delivered out till Wednesday morning. On Wednesday Aylett gave notice to Hefford, and Hefford to the defendant. The question was, whether the defendant had received due notice of the dishonor of the bill.89

v. Fotterall, 7 Leigh (Va.) 179; Miltenberger v. Spaulding, 33 Mo. 421; Commercial Bank of Kentucky v. Barksdale, 36 Mo. 573.

"It is said that this usage was not known to the plaintiff, and hence could not be obligatory upon it.

"A knowledge by plaintiff of this usage was not necessary to its validity." Commercial Bank of Kentucky v. Varnum, 49 N. Y. 269, 276-277 (1872). See Amsinck v. Rogers, 189 N. Y. 252, 82 N. E. 134, 12 L. R. A. (N. S.) 875, 121 Am. St. Rep. 858 (1907).

39 The arguments of counsel are omitted.

Lord ELLENBOROUGH. It is of great importance that there should be an established rule upon this subject, and I think there can be none more convenient than that where the parties reside in London, each party should have a day to give notice. I have before said, the holder of a bill of exchange is not, omissis omnibus aliis negotiis, to devote himself to giving notice of its dishonor. It is enough if this be done with reasonable expedition. If you limit a man to the fractional part of a day, it will come to a question how swiftly the notice can be conveyed. A man and horse must be employed, and you will have a race against time. But here a day has been lost. The plaintiff had notice himself on the Monday, and does not give notice to his indorser till the Wednesday. If a party has an entire day, he must send off his letter conveying the notice, within post time of that day. The plaintiff only wrote the letter to Aylett on the Tuesday. It might as well have continued in his writing desk on the Tuesday night, as lie at the post office. He has clearly been guilty of laches, by which the defendant is discharged.

Plaintiff nonsuited.40

BURBRIDGE v. MANNERS.

(Nisi Prius, 1812. 3 Camp. 193.)

See post, p. 730, for a report of the case.

BRAY et al. v. HADWEN.

(Court of King's Bench, 1816. 5 Maule & S. 68.)

At the trial of this cause before Graham, B., at the last Devon assizes, the action being by the plaintiffs as indorsees against the defendant as indorser of a bill of exchange, the question was, if sufficient notice of the dishonor of the bill had been given to the defendant. The bill was payable at a banker's in London, and became due on the 14th of July, 1814, and was presented on that day about 12 o'clock, and dishonored. The bill was returned with notice of its dishonor by the post on the 15th to Glyn & Co., bankers at Launceston, with whom the plaintiffs had deposited the bill as their bankers. The letter reached. Launceston on Sunday morning, the 17th. And on Monday, the 18th, Glyn & Co. sent notice by the post to the plaintiffs at Tavistock, where they resided, and the plaintiffs afterwards forwarded notice to another indorser, who gave notice to the defendant. The post from London to Launceston arrives at Launceston at 8 o'clock in the morning, and letters are delivered in about half an hour, and the post from Launces

40 Accord: Siegel ". Dubinsky, 56 Misc. Rep. 681, 107 N. Y. Supp. 678 (1907).