8

5

where the bill does not indicate the residence of either party or the place of payment, the fact may be shown in order to determine the nature of the bill. The rule requiring a notarial protest is satisfied by the protest of a de facto notary; but it has been said that a notary commissioned by a state government after its attempted secession from the Union was not a de facto notary; but the protest is not rendered invalid, the same court has held, by the fact that the notary is an officer of a seceding state. The necessity or the occasion for such decisions is not likely to recur. But the notary can act only in the district or county wherein his authority extends. If there is no notary at the place of payment, the bill may be protested by any substantial person in the presence of witnesses. Where the interest of a witness disqualifies him from testifying, a condition which no longer exists except in peculiar instances, such a disqualified witness is not a competent notary to protest a bill. Thus where a notary was a stockholder in a bank, it was held that he could not protest a bill owned by the bank.10 But the reason of the rule has ceased when interest ceases to disqualify a witness." In some localities it is still the rule that a socalled atheist or unbeliever in a future state of rewards and punishments is not a competent witness, and the reason of the rule would disqualify him as a notary. But the son of the holder may as a notary protest his father's bill. The demand of payment must be made by the same notary who protests the bill," and the rule seems to be that the clerk of the notary cannot make the demand and the notary protest

5 Harmon v. Wilson, 1 Duv. 222. 6 Todd v. Neal, 49 Ala. 266. But he may be an officer of a seceding state. Tyrie v. Rives, 57 Ala. 173. 1 See last note.

8 Gordon v. Dreux, 6 Rob. (La.) 399; Neeley v. Morris, 2 Head, 595. 9 Bank of Kentucky v. Pursley, 3 T. B. Mon. 238.

10 Herkimer Bank v. Cox, 21 Wend. 119; Bank v. Porter, 2 Watts, 141.

11 Nelson v. First Nat. Bank, 69 Fed. R. 798 (C. C. À.); Morland v Citizens' Sav. Bank, 97 Ky. 211.

12 Eason v. Isbell, 42 Ala. 456; Waters v. Petrovic, 19 La. 584. The maker of the note may as a notary protest. Dykman v. Northridge, 153 N. Y. 662, 1 App. Div. 26.

13 Kentucky Commercial Bank v. Barksdale, 36 Mo. 563.

the bill; 14 nor can the notary make the protest upon the demand of some one else; 15 and a protest by the clerk or the deputy of a notary is not good, even if the clerk or deputy presents the bill and makes the demand.16 But this rule is relaxed or denied by some courts as to a notary's clerk or deputy in large cities," and in other courts the custom is held to justify the clerk's or deputy's acting,18 and in other instances the notary is empowered by law to appoint a deputy.19 If the notary is authorized by law to appoint a deputy, a protest by the notary upon a demand by his deputy is sufficient.20 But certainly a protest by the clerk of a notary without the knowledge of or any authority from the notary is not valid. Under the statutes of many states protest is permitted as to domestic paper,22 and if the statute be held to mean protest by a notary, the demand should be made by the notary in order to prove protest by his certificate, unless a statute otherwise permit as to a clerk or deputy." The party who employs a notary as an agent either imme

21

14 Kentucky Commercial Bank v. Barksdale, supra; Gawtry v. Doane, 51 N. Y. 84; Williamson v. Turner, 2 Bay, 410; Hunt v. Maybee, 7 N. Y. 266. See Bank of Kentucky v. Gary, 6 B. Mon. 626; McClane v. Fitch, 4 B. Mon. 599; Lee v. Buford, 4 Met. (Ky.) 7; Chew v. Read, 11 Smedes & M. 182; Carter v. Union Bank, 7 Humph. 548 (statutes allowing notary to appoint deputy); so Bank of Louisiana v. Lawless, 3 La. Ann. 129.

15 Marsaudet v. Jacobs, 6 Rob. (La.) 276; Shepherd v. Jonte, 14 La. 246; Meise v. Newman, 76 Hun, 341. 15 Donegan v. Wood, 49 Ala. 242; Chenoweth v. Chamberlin, 6 B. Mon. 60, semble; Cribbs v. Adams, 13 Gray, 597; Ellis v. Commercial Bank, 7 How. (Miss.) 294; Commercial Bank v. Barksdale, 36 Mo. 563 (demand by notary's partner who

was also a notary); Onondaga Bank v. Bates, 3 Hill, 53; Lock v. Huling, 24 Tex. 311. See Bank of Alexandria v. Wilson, 2 Cranch, C. C. 5. This decision may be put upon the ground that a demand not by a notary is good except where notary's demand is compulsory; provided the person making the demand testifies and reliance is not placed on the certificate.

17 Monroe v. Woodruff, 17 Md. 159; Sacrider v. Brown, 3 McLean, 481. 18 Miltenberger v. Spaulding, 33 Mo. 421. This creates a new species of public officer.

19 See last two cases in note 14. 20 See cases cited in note 14. 21 Sacrider v. Brown, 3 McLean; 481.

22 See § 310, post.

23 See notes 14 and 16, supra.

diately or mediately through a collecting bank or collect ing agency, so far as the person sought to be charged is concerned, must bear the result of the notary's inadequate demand, or want of diligence in making the demand, just as if he were a private individual.25 The rules as to the notary's action in making a demand of payment apply with equal force to the notary's presentation for acceptance, where such presentation is required.26

§ 247. By whom demand made on domestic paper.- Domestic paper, which includes everything requiring a demand of payment, such as promissory notes, checks, orders or certificates of deposit, does not require a notarial demand unless a statute so provides. And this is true though a note be made in one state payable in another. Yet without a statute, if such paper is presented and protested by a notary, the fact may be proven as a demand by the holder through an agent. The demand must be made by the holder or his

agent. The ownership of the paper is determined by the ordinary rules of law applicable. A bailee or pledgee of paper who holds the paper as collateral security or for the purposes of collection may be considered the owner, but the distinction is not important, because even if not holder he is agent. Where the wife's personal property passes by marriage to the husband he is the owner of paper owned by his wife upon marriage, and properly makes the demand in order to reduce the property to possession. The demand may be made by any one lawfully in possession and competent to testify. Possession is sufficient evidence of authority to demand payment. A person who receives or holds the paper for collection may make demand or authorize it. The authority of the clerk, or on principle any other employee, of the holder to make the demand need not be shown.10 The indorsement by the cashier of a bank of the bank's paper to a cashier of another bank is certainly within the scope of his authority, and is presumed to be authorized." The verbal request of the holder is sufficient authorization.12 But where the agent's authority is terminated by the death of his principal, a demand by the agent after the death is insufficient.13

8248. On whom demand to be made. The general statement of the rule for making a demand upon the obligor upon commercial paper, where a demand is required, is that the

4 Gale v. Tappan, 12 N. H. 145. 5 It is of little importance whether he be considered holder or agent. 6 Shed v. Britt, 1 Pick. 401; Cole v. Jessup, 10 N. Y. 96; Jex v. Tureaud, 19 La. Ann. 64. See Batchellor v. Priest, 12 Pick. 399.

7 Cole v. Jessup, 10 N. Y. 96; Agnew v. Bank of Gettysburg, 2 Har. & G. 478; Morris v. Foreman, 1 Dall. 193.

8 Blakeslee v. Hewitt, 76 Wis. 341; Powell v. State Bank, 1 Disn. 260; Freeman's Bank v. Perkins, 18 Me.

9 See § 182, ante.

10 Draper v. Clemens, 4 Mo. 52, so states as to authority to receive a demand, and the same rule must be true as to making demand.

11 Church v. Barlow, 9 Pick. 547. 12 Freeman v. Boynton, 7 Mass. 483; Bank of Utica v. Johnson, 18 Johns. 230. The drawees may act as agents for the holder in giving notice to other parties. Mt. Pleasant Branch Bank v. McLeran, 26 Iowa, 306. 13 Gale v. Tappan, 12 N. H. 145.

demand should be made upon the drawee or maker, or upon his agent duly authorized.' Subject to many limitations. arising from considerations as to the proper place to make a demand and as to diligence in discovering the drawee or maker, the rule is correct. If a personal demand is made at a proper time and place and in a proper manner, it is of course sufficient. The ingredients of time and place and a proper manner of making the demand will be discussed in the succeeding sections, but even if the demand be not made in a proper manner or at a proper hour or place, an absolute refusal to pay or to accept, where no objection is made as to the nature of the demand, will cure the defects in the presentment. The determination of the obligor is not always an easy matter, but generally the persons named as makers or drawees are the proper recipients of the demand. Thus, the makers of a note were the standing committee of the parish, and a demand upon them was held sufficient without any demand upon the treasurer of the parish.3 In the case of joint obligors, the rule is that if the note is joint and several, or joint, the demand must be upon each obligor; and this rule is applied in one jurisdiction, as the cases cited show, to indorsers, who are in fact makers; but some cases which do not seem well decided, considering a joint note in the form

1 See the cases cited in the following notes, which all recognize the rule.

2 Follain v. Dupre, 11 Rob. (La.) 454; Gilbert v. Dennis, 3 Met. 495; Waring v. Betts, 90 Va. 46; King v. Crowell, 61 Me. 244; Parker v. Kellogg, 158 Mass. 90. A refusal to change account is not a demand and refusal. Burch v. Newberry, 10 N. Y. 374. Presenting check for certification not a demand. Bradford v. Fox, 39 Barb. 203, wrong, and absurdly so. Certification is payment by a novation..

3 Casco Bank v. Mussey, 19 Me. 20. 4 Blake v. McMillen, 22 Iowa, 358;

6

Union Bank v. Willis, 8 Met. 504; Benedict v. Schweig, 13 Wash. 476; Taylor v. Davidson, 2 Cranch, C. C. 434; Harris v. Clark, 10 Ohio, 5; Greenough v. Smead, 3 Ohio St. 415; Shedd v. Britt, 1 Pick. 401; Hestus v. Petrovic, 1 Rob. (La.) 119.

5 Bank of Red Oak v. Orvis, 40 Iowa, 332; Arnold v. Dresser, 90 Mass. 435.

6 If one joint obligor is dead, demand must be made on his personal representative. Hale v. Burr, 12 Mass. 86; Haight v. Kindhart, 1 S. C. 189. This of course does not apply to partnership paper. Union Bank v. Willis, 8 Met. 504.