"1 And so, where hoc," said the court, "he acts as a notary.' it was in evidence that, by the laws of Louisiana, each notary was authorized to appoint one or more deputies to assist him in making protests and delivering notices, and the protest on its face stated that the notary A., by his deputy B., presented the bill, etc., it was held sufficient. So, it has been held in a number of cases, that evidence of a custom for a notary to act by his clerk is admissible,3 and in Massachusetts the doctrine was well expressed by Bigelow, J. In Virginia, the Court of Appeals was unanimous as to this doctrine, but divided equally as to whether or not, at common law, presentment by the notary's clerk was sufficient." It is quite clear that in no case can the clerk make the protest, however it may be determined as to the presentment and demand.6 § 587. Custom for notary's clerk to make presentment must be shown to relate to foreign bills.-There may be a custom for notaries' clerks to make presentment as foundation of protest of inland bills and of promissory notes, and 'Burke v. McKay, 2 How., 66 (1844). Carter v. Union Bank, 7 Humph., 548 (1847). * Commercial Bank v. Varnum, 49 N. Y., 275 (1872), overruling s. C., 3 Lans., 86 (1870); Commercial Bank v. Barksdale, 36 Mo., 563; Willenberger v. Spalding, 33 Mo., 421; Nelson v. Fotteral, 7 Leigh, 179. See ante, § 582, note. In Cribbs v. Adams, 13 Gray, 600, Bigelow, J., said: "By the common law, as we understand it, and according to the uniform practice in the commonwealth, the duties of a notary must be performed personally, and not by a clerk or deputy. He is a sworn officer, clothed with important public duties, which in their nature imply a public confidence and trust. Doubtless, by well-settled usage in some places, and in others by express provision of statute, notaries are authorized to employ clerks or deputies to perform official acts coming within the sphere of their duty, and are employed to certify and authenticate their acts by their own notarial certificates in like manner as if such acts had been performed by themselves personally. But such usage or provision of law is a fact to be proved by evidence. At the trial of this case the plaintiff offered no evidence that a notary in Louisiana (where the bill was protested) was authorized, either by usage or statute, to employ a deputy, or to authenticate his acts by his own certificate." yet it may not extend to include foreign bills. And wher a protest of a foreign bill has been based on presentment by a notary's clerk, the plaintiff must not only show a general custom or practice for the clerk to make presentment of bills and notes, but must show distinctly that the custom extended to foreign bills. As said in a recent case in Massachusetts, by Ames, J.:1 "The plaintiff wholly failed to prove the existence of any well-settled local usage in New York that would authorize a notary in the case of a foreign bill to make a presentment and demand of payment by his clerk or deputy, and to certify and authenticate notarial acts so performed, in the same manner as if he had performed them himself. The witnesses who testify that it is customary in the city of New York for the clerks of notaries to present and demand payment of drafts, and for notaries to protest upon such presentment and demand, wholly fail to give any information upon the point whether that custom applies to and includes the case of foreign bills. One of them says that his attention had never been called to that distinction, and the other makes no allusion to it. It hardly need be said that a local usage, in derogation of the general rules of law, requires clearer and better evidence of its existence and validity." In Pennsylvania, where a promissory note was dishonored, and the plaintiff offered in evidence the certificate of a notary, by which it was certified that the notary had given the indorser notice of non-payment; but the notary, on the trial, testified that the certificate was in the handwriting of his son, then absent in the West Indies; that his son had attended to the presentment and notice, and he himself had no personal knowledge on the subject. This testimony was not objected to, and it was held that, under the peculiar circumstances of the case, and the Pennsylvania statute making notarial certificates competent evidence, that the 1 Ocean National Bank v. Williams, 102 Mass., 143. certificate was admissible as matter of evidence, to be weighed with the rest of the testimony by the jury.1 SECTION II. TO WHOM PRESENTMENT FOR PAYMENT MUST BE MADE. § 588. Presentment for payment must be made to the drawee or acceptor of the bill, or maker of the note, or to an authorized agent. A personal demand is not necessary, and it is sufficient to make the demand at his usual residence or place of business of his wife or other agent; for it is the duty of an acceptor or promisor, if he is not present himself, to leave provision for the payment of his bills or notes. There is no doubt that a clerk found at the countingroom of the acceptor or promisor is a competent party for presentment for payment to be made to, without showing any special authority given him. But where the protest stated the mere fact of presentment "at the office of the maker," it will be considered insufficient, as not showing that the paper was presented to party at the office authorized to pay or refuse payment. A demand upon the servant of the owner "who used to pay money for him," was held sufficient in England." § 589. Presentment to drawee in person.-It has been indicated by Chitty, in his work on Bills, that while in making presentment for acceptance the holder should, if possible, see the drawce personally, in the presentment for payment it is not necessary, it being sufficient if it be made. 1 Stewart v. Allison, 6 Serg. & R., 324. * Mathews v. Haydon, 2 Esp., 509; Brown v. McDermott, 5 Esp., 265. 3 Stainback v. Bank of Virginia, 11 Grat., 260; Nelson v. Fotteral, 7 Leigh, 180; Draper v. Clemons, 4 Mo., 52; Stewart v. Eden, 2 Caines, 121; Reynolds v. Chettle, 2 Camp., 596; Bradley v. Northern Bank, 60 Ala., 259. Nave v. Richardson, 36 Mo., 130. Bank of England v. Newman, 12 Mod., 241: S. C. 1 Lord Raym., 442. But we concur with Story,1 at the house of the acceptor. that there is no just foundation for the distinction. If, indeed, the drawee does not happen to be present when the call is made at his house or counting-room to present the bill for acceptance, the holder, it seems, is not bound to consider it as a refusal to accept, but may wait a reasonable time for the return of the drawee who has as yet incurred no obligation respecting the bill, and may indeed be ignorant of its existence. The holder may even wait until the next day to renew his call to present for acceptance. But no such delay is allowable in making presentment to the acceptor for payment. It is the duty of the acceptor, who is the principal debtor, to provide for the payment of the bill; and if he is not in himself, and there is no one present to answer for him, when the holder calls at his house or counting-room, the bill should be treated as dishonored, and protested for non-pay ment. $590. Presentment to person on premises.-If presentment be made at the place specified in the instrument, or in the case of one payable generally at the place of business of the acceptor or maker during business hours, or at his domicile during a reasonable hour of the day, it is sufficient if it be made to any person to be found upon the premises, especially if the maker be absent or inaccessible." Where presentment was made to the wife of the maker, she informing the holder that her husband was out of town, it was held sufficient. And so it was deemed sufficient to charge the indorser where the holder presented the bill to an inmate of the maker's house, who was coming out, and who stated that the acceptor had removed the holder 1Story on Bills (Bennett's ed.), § 350. Ibid.; Bank of Washington v. Triplett, 1 Pet., 25; Mitchell v. De Grand, I Mason, 176. Cromwell v. Hynson, 2 Camp., 596; Phillips v. Astberg, 2 Taunt., 206. Draper v. Clemons, 4 Mo., 52. Moodie v. Morrall, I Const. R., 367. leaving a card containing notice for the acceptor of the maturity of the bill.' Where there is no one to answer, presentment at the maker's dwelling is sufficient." $590a. General principles as to presentment and demand. The general rule as to the presentment and demand of commercial paper may be stated as follows: The presentment and demand must be made within reasonable hours on the day of maturity. For the purpose of fixing the liability of indorsers, the note or bill is payable on demand at any time during those hours. What are reasonable hours will depend upon the question whether or not the note or bill is payable at a place or bank, where, by the established usage of trade, business transactions are limited to certain stated hours. If there are such stated hours where the note or bill is payable, the presentment and demand must be made within those hours; but if there are no stated hours, and no place of payment is designated in the note or bill, the presentment and demand may be made either at the place of business or residence of the maker or acceptor; if at his place of business, it must be within the usual business hours of the city or town; if at his residence, then within those hours when the maker or acceptor may be presumed to be in a condition to attend to business.3 $591. When acceptor or maker is dead.--If the acceptor or maker be dead at the time of the maturity of the bill or note, it should be presented to his personal representative, if one be appointed, and his place of residence can, by reasonable inquiries, be ascertained. If there be no personal representative, then presentment should be made, and payment demanded, at the dwelling-house of the deceased, if 1 1 Buxton v. Jones, 1 Man. & G., 83; 1 Scott N. R., 19; Story on Bills (Bennett's ed.), § 350, note 1. McFarland v. Pico, 8 Cal., 631. 2 Stivers v. Prentice, 3 B. Mon., 461. 'Gower v. Moore, 25 Me., 16; Price v. Young, I Nott & McC., 438; Story on Notes, §§ 241-253; Magruder v. Union Bank, 3 Pet., 87; Juniata Bank v. Hale, 16 Serg. & R., 167. |