Sussex Bank v. Baldwin and Shipman. tion which is vested in it by law, for the advancement of justice. I am therefore of opinion that the rule to show cause be made absolute, and that the cause be referred to the country for further inquiry. Rule absolute. SUSSEX BANK v. BALDWIN AND SHIPMAN. In case, on rule to show cause against a new trial. A presentment and demand for payment of a promissory note, may be made at the drawer's office or regular known place of business for the transaction of his moneyed concerns, as well as at his residence. Such presentment and demand may be made by a person not a notary public. An authority therefor, may be created by parol. And the mere possession of the paper, is evidence enough of such authority. A notarial demand, and protest of non-payment of a promissory note, is not necessary to fix an indorser's liability. Any person may present at its maturity, a promissory note of which he is put in possession, and if paid in the ordinary course of business, and taken up. the payment is good: and if not paid, the demand is good as a groundwork for notice to the indorsers, and that without any protest. A notary's name may be printed or written at the foot of the notice to indorsers, that a note is dishonored. In order to make an indorser liable, notice of non-payment of the note, must be sent to him, if by mail, on the day next after the third day of grace, unless the mail depart at an early hour in the morning, before a party with reasonable diligence could mail his notice. The general rule is that a party is bound to exercise reasonable, not excessive diligence. Against indorsers of a promissory note, a clear case of waiver of notice must be made out. Nothing short of an unconditional promise to pay, made with a full knowledge of the laches of the holder of the note, is sufficient. A knowledge that the maker could not pay, does not dispense with strict proof of demand and notice. The question of usury in banking discounts, considered. Sussex Bank v. Baldwin and Shipman. Armstrong and Williamson, for rule. J. W. Miller and P. D. Vroom, contra. DAYTON, J. This case was tried at the Sussex Circuit of May, A. D. 1838, and verdict had for the plaintiff. Sundry reasons are now relied upon to set the same aside, and I will consider them in their order. The defendants are the indorsers of a promissory note made by Conrad Teese, October 24, 1836, for five hundred and five dollars and sixty-one cents, payable six months after date to the order of Wm. A. Baldwin & Co., (the defendants,) and by them indorsed to the plaintiff. The first reason assigned is, that the note was not duly presented to the maker, for payment. That it was presented at an improper place, to wit, the office of Teese, the maker, and by an improper person, to wit, one Dennis, who swears that he acted as the clerk and under the directions of Wm. Tuttle, who was himself merely the agent of James Hedden, the notary public. As to the place of presentment, the objection may be disposed of very briefly. It is a point not properly arising under the evidence in the case. Dennis, the witness, swears that Teese, the maker of the note told him, Dennis, to present his notes for payment at that place, and that he had been in the habit of doing so. This estops Teese from objecting to the place of presentment; and that which is good against the drawer, is good against the indorser. State Bank v. Hurd, 12 Mass. 172; Whitwell v. Johnson, 17 Mass. R. 449. But it is thought advisable that this point be put at rest in this state, by an expression of opinion by this court. It appears by the evidence, that the office in question was the regular place of business of the maker; and I have no doubt where a person has an office or known and settled place of business for the transaction of his moneyed concerns-whether he be a banker, broker, merchant, manufacturer, mechanic, or dealer in any other way, a presentment and demand at that place, (as well as a presentment and demand at his residence,) is good in law. It must not however be a place selected and used temporarily for the transaction of some particular business, as settling up some Sussex Bank v. Baldwin and Shipman. old books or accounts merely, but his regular and known place of business for the transaction of his moneyed concerns. The counting room of a banker or merchant, may be a proper place for a demand, though the manufactory or work shop would not. Yet if the manufacturer or mechanic have an office, or known place of business for the purpose aforesaid, a good demand may be made there. Bank of Columbia v. Lawrence, 1 Peters, 582; Williams v. The Bank of U. States, 2 Peters, 100; Byles on B. 118; State Bank v. Hurd, 12 Mass. 173. Nor is there any thing in the objection that the presentment was made by an improper person. It appears by the evidence that Tuttle did the business of Hedden the notary public, and it must have been with the consent and knowledge of the Bank, that he employed and directed Dennis, who was his clerk, to present the note in question to the drawers, and put him in possession of the note for that purpose. If the note had been paid on presentment, he could and would have delivered it up to the drawers, and that would have exonerated them from further liability. An authority to make a demand, may be created by parol, and the mere possession of the paper, is evidence enough of such authority. 3 Kent C., 108; Bank of Utica v. Smith, 18 J. R. 230; Shed v. Brett, 1 Pick. 401; Morris v. Foreman, 1 Dal. 193; Freeman and others v. Boynton, 7 Mass. 487. There is an impression current in some degree, even with the bar, that a presentment of a note, must be by a notary, or at least on his behalf, and that he must protest it upon non-payment, before the indorser is liable. But this is not so. The record of a demand and notice &c. by a notary, entered in his book, according to our statute, of 21st February, 1829, Harr. C. 249, may serve to refresh his memory, or in case of his absence or death, it may be used as evidence of the facts contained in it; but such demand and protest by a notary, are not essential to a recovery against the indorser. It was not so by the common or commercial law, nor is it required by our statute. If a notary act in the premises, and make the protest, although sanctioned by general custom, it is not strictly an official act. Nichols v. Webb, 8 Wheat, 326; 3 Kent C. 93-4; 1 Saund. on Pl. & Ev. 295. Any person may present at its maturity, a promissory note of which he is put in possession, and if paid in the ordinary course Sussex Bank v. Baldwin and Shipman. of business, and taken up, the payment is good; and if not paid, the demand is good as a ground work for notice to the indorsers, and that without any protest. The rule is otherwise as to foreign bills of exchange, which must be protested by a notary, and their official seal is plenary evidence in all foreign courts and countries, of the dishonor of the bill, (vide cases above cited.) 2. The next objection, is to the notice to the indorsers. The name of James Hedden, the notary public, was printed at the foot of the notice, not written; and this is assigned for error. There is nothing in this objection. The law prescribes no form of notice, its object is merely to apprise the party of the non-payment to put him upon inquiry, that he may protect his rights. This is as well done by a notice with a printed, as with a written name. The signature of the notary, would carry with it in a large majority of cases, no higher degree of certainty; than the printed name, for it must in most cases be unknown to those to whom notices are sent. The notice in this case, came from a proper source, and stated the proper facts; that is enough. It is needless to cite authorities upon this point. 3. The next objection is, that the notice was not sent in proper time. The Sussex Bank was the owner of the note, and had sent it indorsed to the Newark Bank for collection. The demand of payment was made on Teese the maker, at Newark, where he resided on the 27th April, 1837, and on the same day, notice of non-payment was directed to S. 1). Morford, the cashier of the Sussex Bank, at Newton. In this notice to Morford, was inclosed another directed to the defendants in this suit, with the name James Hedden, notary public," printed thereto, and none other. It appeared that Tuttle who forwarded the notices for the notary, did not know that the defendants resided in Newark, but supposed them to reside in Sussex. Morford swears that on the notice thus directed to the defendants, he wrote "Newark, New Jersey," and "thinks he sent it by the next mail." But upon cross examination, he said "he distinctly recollected putting the notice of protest directed to the defendants into the postoffice at Newton, but could not recollect at what time he did so. Could not tell precisely what was at that time the course of mail Sussex Bank v. Baldwin and Shipman. between Newton and Newark, but thought that it was carried each way, three times a week." And upon a re-examination, he said "he seldom received such notices, but when he did, was in the habit of sending them by the next mail: that he had no doubt he put the notice for the defendants, into the post office at Newton, the day after he received it, but could not say whether it was in time for the next mail." And upon this branch of the case, the judge charged the jury, that if Mr. Morford the cashier, placed the notice in the post office, directed to the defendants, on the day after he received it, it was sufficient and legal evidence of notice to the defendants. It is admitted that every bona fide indorser who may receive a notice of non-payment, has a day to notify his immediate indorser; but it is contended that this rule extends only to real holders and indorsers, not to such as are mere agents. That the Sussex Bank had no right by appointing the Newark Bank its agent, to extend the time allowed it by law for notifying the indorsers, of the non-payment of the note really held and owned by it. It would appear reasonable that the holder of a note should not for his own accommodation, thus vary the rights of an indorser: but the authorities grounded I presume upon commercial convenience, are the other way. It has long been settled that a banker who holds a bill for a customer, is entitled to a day to give him notice, and the customer or principal is entitled to another day to give his indorser notice; Firth v. Thursh, 15 Eng. C. L. 244-5; Robson v. Bennett, 2 Taunt. 388; Haynes v. Birks, 3 Bos. & P. 599; Langdale v. Trimmer, 15 East 291; Bray v. Hadwen, 5 M. & S. 68; Scott v. Lifford, 9 East, 347; Daly v. Slatter, 4 Carr. and P. 200; but in this last case, certain points were reserved, for which, see case; and the same principle is laid down in Mead v. Engs, 5 Cowen, 303, where it is held that one to whom a bill or note has been indorsed merely as agent to collect, (e. g. a bank,) is considered as a holder for the purpose of giving and receiving notice of nonpayment. See also, Colt v. Noble, 5 Mass. 167; Tunno v. Lague, 2 J. C. 1. It was said on the argument that no case could be found where this rule had been applied unless the notice was from one indorser notifying another; and that in the case now under consideration, the notice was not from the Sussex Bank, which |