The opinion of the court was delivered by
Thompson, J.
It is the duty of a notary when he receives a bill or note, intended to be protested, to make demand of the party primarily liable, at his usual place of business, within business hours. By Act of Assembly, his notarial certificate of demand and notice, is primá facie evidence of the facts certified to. The plaintiff in error contends, that the certificate of presentation and demand here was insufficient, because the place at which it was presented was not stated; but a general certificate that the notary “went with the note to the place of business of the drawer, in. order to demand payment thereof, and found the same closed, and found no one there to answer respecting the same.” The complaint seems to be, that as the defendant has a right to contradict the certificate of the notary, therefore it should be in such form as to enable him to do so. No authority has been cited for the position that the certificate should be more specific, than to refer to the usual place of business of the maker, or that his number or street should be given. No one would dream of giving the number and street of a well-known broker or business man, and the practice does not seem to require it; certainly the Act of Assembly does not provide for it. I do not see the necessity for any greater certainty in this particular, than there is in describing the place to which the notice of protest has been sent. Designation by street or number was thought not to be necessary in such certificate: Sherer v. The Easton Bank, 9 Casey 134. Where a party has no business place or residence, or has removed, then it seems material to set forth the nature of the inquiries to ascertain his whereabouts, in order to due and reasonable diligence to make demand; but that is not this case.
It was further objected, that the facts in the certificate did not sustain the averment in the warn of presentation and demand. It was evidence that all was done which was required to be done in such a case, in order to make demand; and there are many cases in which such acts have been considered a constructive presentation and demand, and sufficient to sustain the averment of these facts in the narr.: Smith v. Bank of Washington, 5 S. & R. 318; [256]*256Lehman v. Jones, 1 W. & S. 126, in which is cited Lambert v. Oakes, 1 Ld. Raym. 443; Stewart v. Eden, 2 Caines Rep. 126; The Bank of Columbia v. Lawrence, 1 Pet. 578; Williams v. Matthews, 3 Cowen 252; Peters v. Lent, 4 Duer 231; Mechanics’ Bank v. Place, 4 Id. 212; West v. Brown, 6 Ohio St. Rep. 542; and Hinsdale v. Miles, 5 Cow. 331. These authorities certainly sustain the position of the court below in overruling this objection.
The cases cited on the other side do not really militate against the current of these authorities, and some of them do not touch the question. In McGruder v. The Bank of Washington, 9 Wheat. 578, the form of the narr. is not given, and there was no point on the subject of discrepancy between the allegata and probata. In Blakely v. Grant, 6 Mass. 386, the narr. averred presentment and demand at the drawer’s last place of residence, and the notarial proof was absence from the state for several years. This was held a variance. In Hill v. Yarrell, 3 Greenl. R. 233, the declaration stated, that notice of non-payment was duly given to the drawer. It was held that, under such averment in the narr., legal notice must be proved. That if due and reasonable diligence was relied on as dispensing with actual notice, it should have been so averred. And this seems to have been the substance of the ruling in the case of Bennett v. Young, 6 Harris 261. The general rule deducible from the cases seems to be, that where facts are relied on as dispensing with actual presentment and demand, and a legal equivalent is relied on, the facts constituting it should be stated in the narr. Such, for instance, as where after due and reasonable diligence the drawer or maker’s residence cannot be found— or where he has removed out of the country; these things must be averred in the narr: Byles on Bills 171-337; 6 Mass. 386; 3 Greenl. R. 133; Story on Prom. Notes, § 180. But where the presentation and demand have been attempted to be made at the maker’s place of business, and there is no one to answer, and there is no proof that the party had any other place of business, or had removed, the authorities estimate this as equivalent to actual presentation and demand, and sustain the narr. with the averment of presentation and demand. Eor, as has been well said, where the party has a place of business, it is the duty of the notary to go there, for the purpose of making demand, and as it is the duty of the maker to have some one there to answer, the power of the notary is at an end when he has gone there, he has done all that the law requires of him, and it is the equivalent of a presentment and demand. A different case might be presented, if the proof was that the call was at the residence of the maker, and his house was shut up. There, inquiry might be required by the notary, and then the case would rest on whether there had been diligence — which should be averred. But here [257]*257the proof was that there was a business place, and no one at it. This does not necessarily imply a change, or removal either.
The 4th assignment of error is to the ruling of the court, that this was a sufficient presentation and demand in fact. From what has been already said, it is quite apparent that it was sufficient. This was directly ruled in Shed v. Brett, 1 Pick. 413; 2 Greenl. Ev. § 178. If presentation be “made at the drawer’s place of business it will be sufficient, if made within the usual hours of business, although the maker be absent therefrom,” for “ he is bound to have a suitable person there to answer inquiries, and pay his notes, if there demandedStory on Prom. Notes, § 235; for which the author cites many authorities. That was just the proof in the case in hand. A presentment at the maker’s place of business, in business hours, and no one to answer. We deal not with anything but the case in hand. There are many shades of difference in the decisions on this subject, and they are not always reconcilable, even on the same state of facts. We will, not attempt it. Suffice it, that we see no error in the ruling of the court below, on the subject of the presentation and demand.
The 6th assignment of error relates to the answer of the court to the defendant’s 8th point. • On the trial below, the plaintiff in error claimed that his endorsement was in consummation of the agreement between Reeves, Buck & Co., and Wm. L. Helfenstein, the maker, by which the notes in suit, with others, were to betaken by the plaintiffs in exchange for the obligations of the Philadelphia and Sunbury Railroad Co., in their hands, and which were to be surrendered to Helfenstein, on the deposit of certain collaterals, in addition to the notes; and as he had endorsed on the-faith of this agreement, and as the collaterals were never deposited according to the agreement, he was not bound. This was the substance of his eighth point; and which he claimed that the evidence authorized him to raise.
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The opinion of the court was delivered by
Thompson, J.
It is the duty of a notary when he receives a bill or note, intended to be protested, to make demand of the party primarily liable, at his usual place of business, within business hours. By Act of Assembly, his notarial certificate of demand and notice, is primá facie evidence of the facts certified to. The plaintiff in error contends, that the certificate of presentation and demand here was insufficient, because the place at which it was presented was not stated; but a general certificate that the notary “went with the note to the place of business of the drawer, in. order to demand payment thereof, and found the same closed, and found no one there to answer respecting the same.” The complaint seems to be, that as the defendant has a right to contradict the certificate of the notary, therefore it should be in such form as to enable him to do so. No authority has been cited for the position that the certificate should be more specific, than to refer to the usual place of business of the maker, or that his number or street should be given. No one would dream of giving the number and street of a well-known broker or business man, and the practice does not seem to require it; certainly the Act of Assembly does not provide for it. I do not see the necessity for any greater certainty in this particular, than there is in describing the place to which the notice of protest has been sent. Designation by street or number was thought not to be necessary in such certificate: Sherer v. The Easton Bank, 9 Casey 134. Where a party has no business place or residence, or has removed, then it seems material to set forth the nature of the inquiries to ascertain his whereabouts, in order to due and reasonable diligence to make demand; but that is not this case.
It was further objected, that the facts in the certificate did not sustain the averment in the warn of presentation and demand. It was evidence that all was done which was required to be done in such a case, in order to make demand; and there are many cases in which such acts have been considered a constructive presentation and demand, and sufficient to sustain the averment of these facts in the narr.: Smith v. Bank of Washington, 5 S. & R. 318; [256]*256Lehman v. Jones, 1 W. & S. 126, in which is cited Lambert v. Oakes, 1 Ld. Raym. 443; Stewart v. Eden, 2 Caines Rep. 126; The Bank of Columbia v. Lawrence, 1 Pet. 578; Williams v. Matthews, 3 Cowen 252; Peters v. Lent, 4 Duer 231; Mechanics’ Bank v. Place, 4 Id. 212; West v. Brown, 6 Ohio St. Rep. 542; and Hinsdale v. Miles, 5 Cow. 331. These authorities certainly sustain the position of the court below in overruling this objection.
The cases cited on the other side do not really militate against the current of these authorities, and some of them do not touch the question. In McGruder v. The Bank of Washington, 9 Wheat. 578, the form of the narr. is not given, and there was no point on the subject of discrepancy between the allegata and probata. In Blakely v. Grant, 6 Mass. 386, the narr. averred presentment and demand at the drawer’s last place of residence, and the notarial proof was absence from the state for several years. This was held a variance. In Hill v. Yarrell, 3 Greenl. R. 233, the declaration stated, that notice of non-payment was duly given to the drawer. It was held that, under such averment in the narr., legal notice must be proved. That if due and reasonable diligence was relied on as dispensing with actual notice, it should have been so averred. And this seems to have been the substance of the ruling in the case of Bennett v. Young, 6 Harris 261. The general rule deducible from the cases seems to be, that where facts are relied on as dispensing with actual presentment and demand, and a legal equivalent is relied on, the facts constituting it should be stated in the narr. Such, for instance, as where after due and reasonable diligence the drawer or maker’s residence cannot be found— or where he has removed out of the country; these things must be averred in the narr: Byles on Bills 171-337; 6 Mass. 386; 3 Greenl. R. 133; Story on Prom. Notes, § 180. But where the presentation and demand have been attempted to be made at the maker’s place of business, and there is no one to answer, and there is no proof that the party had any other place of business, or had removed, the authorities estimate this as equivalent to actual presentation and demand, and sustain the narr. with the averment of presentation and demand. Eor, as has been well said, where the party has a place of business, it is the duty of the notary to go there, for the purpose of making demand, and as it is the duty of the maker to have some one there to answer, the power of the notary is at an end when he has gone there, he has done all that the law requires of him, and it is the equivalent of a presentment and demand. A different case might be presented, if the proof was that the call was at the residence of the maker, and his house was shut up. There, inquiry might be required by the notary, and then the case would rest on whether there had been diligence — which should be averred. But here [257]*257the proof was that there was a business place, and no one at it. This does not necessarily imply a change, or removal either.
The 4th assignment of error is to the ruling of the court, that this was a sufficient presentation and demand in fact. From what has been already said, it is quite apparent that it was sufficient. This was directly ruled in Shed v. Brett, 1 Pick. 413; 2 Greenl. Ev. § 178. If presentation be “made at the drawer’s place of business it will be sufficient, if made within the usual hours of business, although the maker be absent therefrom,” for “ he is bound to have a suitable person there to answer inquiries, and pay his notes, if there demandedStory on Prom. Notes, § 235; for which the author cites many authorities. That was just the proof in the case in hand. A presentment at the maker’s place of business, in business hours, and no one to answer. We deal not with anything but the case in hand. There are many shades of difference in the decisions on this subject, and they are not always reconcilable, even on the same state of facts. We will, not attempt it. Suffice it, that we see no error in the ruling of the court below, on the subject of the presentation and demand.
The 6th assignment of error relates to the answer of the court to the defendant’s 8th point. • On the trial below, the plaintiff in error claimed that his endorsement was in consummation of the agreement between Reeves, Buck & Co., and Wm. L. Helfenstein, the maker, by which the notes in suit, with others, were to betaken by the plaintiffs in exchange for the obligations of the Philadelphia and Sunbury Railroad Co., in their hands, and which were to be surrendered to Helfenstein, on the deposit of certain collaterals, in addition to the notes; and as he had endorsed on the-faith of this agreement, and as the collaterals were never deposited according to the agreement, he was not bound. This was the substance of his eighth point; and which he claimed that the evidence authorized him to raise.
That there was such an agreement between the plaintiffs and Helfenstein was proved by the instruments of writing, signed by the latter and delivered to the former, dated February 8th 1856. There was also testimony to show that on delivery of the collaterals, the obligations of the railroad company were to be surrendered ; that the notes were made, endorsed, and delivered at the-same time with the agreement, to the agent in charge of the business for the plaintiffs; that one of the stipulations in writing was an authority to the depositary of the collaterals, on request of the plaintiffs, in case of a failure to meet the notes at maturity, to sell them and apply the proceeds in payment of the notes.
If these things are true, the ground taken by the defendant below we think was right, and that the jury should have been charged, that if the endorsement was made at the time, and on the strength of an arrangement for collaterals, between the plain[258]*258tiffs and Helfenstein, and the collaterals were never deposited, the defendant was not liable. He certainly should not be bound in a case like the present, for more than he assented to, and it seems to us, that the only inference from the facts is, that he and they had in view the existence of the collaterals, when he endorsed. If so, he was only contingently liable, dependent upon their being deposited according to contract.
But the learned judge of the District Court, in effect, negatived this point, by charging, “that if the plaintiffs agreed that the responsibility of the defendant should be conditional upon the deposit of the collaterals, then the law would be as claimed, but not otherwise.” As there was no evidence of any such agreement, the jury could not easily have failed to find against the defendant on such a proposition. But this was not the defendant’s proposition. He claimed that his endorsement was in pursuance of the arrangement between the plaintiffs and Helfenstein, in which the notes to be endorsed were not to stand alone as security, but they were to be accompanied by collaterals, before the time for the surrender of the Philadelphia and Sunbury obligations — the consideration of the transaction. This being the defendant’s postulate, and the evidence giving rise to it, we think the defendant was entitled to have a distinct affirmation of it, and the benefit of it with the jury. We think, therefore, that the court erred in not giving such an answer.
We do not think it material to notice the other assignments in the case; they are generally but modifications of those already considered, and will not likely appear in the same form on another trial.
Eor the reasons given the judgment is reversed, and a venire de novo awarded.
Read, J., dissented.