
    Oakey & Al. v. Bank of Louisiana & Al.
    Demand of the maker of a note at his domicil, if ho is absent, or at the place where it is made payable, is indispensable to fix or bind tho indorser. The notary must find out tho domicil.
    A notary will not be allowed to testify to any thing which contradicts or strengthens his official acts as declared and set forth in his certificate of protest — 14 L. 831; 7 P.85; 11 It 454.
    Where a note discounted in bank, is not legally protested so as to bind all the indorsers, the bank alone is responsible to the injured party by the neglect of the notary. There is no privity between this party and the notary, who is the agent of the bank. — 1 N. S. 365; See Post, 560.
    Appeal from tbe court of tbe first judicial district.
    This is an action to recover from tbe Bank of Louisiana and William Christy, Esq., the notary of tbe bank, tbe amount of two promissory notes signed by E. A. Blanc, payable to the order of A. Beauvais and by him indorsed. The petitioners allege, that they were tbe second indorsers on said notes, and that by tbe negligence and misconduct of the bank and tbe said notary in making demand and protest, they have lost their recourse against Beauvais their previous indorser after having taken up and paid said notes under protest. They further show that at the time they paid the notes they were ignorant of the defective and illegal protest and paid through error ; that they have since instituted suit against the first indorser and failed to recover for want of proper demand and legal protest in relation to the maker of the notes. They pray judgment against the bank and notary, in solido, for the amount of said notes, interest and costs of their suit against the first indorser and all other costs together with damages
    
      The defendants severed in their answers, but pleaded the-general issue, and denied specially any indebtedness to the plaintiff or liability.
    Upon these pleadings and issues the cause was tried.
    The evidence showed that the notary of the bank had made a mistake in [387] the protest of the notes in not making demand of the maker of them at Ms domicil. It appears from the notary’s certificate that he went to the house of Mr. Labatut in New Orleans, to inquire for the maker of the notes, Mr. F. A. Blanc, “ and was informed that he resided in Pointe Ooupée.”
    
    Protest being made accordingly, it. was shown by other evidence that he had not removed his domicil from New Orleans, but was only absent in Pointe Ooupée. On this proof the first indorser was discharged. The plaintiffs having taken up the notes as second indorsers, in ignorance of this circumstance and at the instance of the bank, there was judgment in their favor against the bank and the notary, in solido, for the amount claimed, and the defendants appealed.
    
      T. Slidell for the plaintiffs.
    
      L. Peirce for the defendants and appellants.
   Bullakd, J.

delivered the opinion of the court.

The plaintiffs allege, that being indorsers of two promissory notes drawn by F. A. Blanc, and indorsed also by A. Beauvais, which had been negotiated and became the property of the Bank of Louisiana, they took up the same on notice of protest and paid the amount to the hank, supposing that legal demand and protest had been made by the notary of the bank. That they afterwards discovered, that in point of fact no legal demand had been made of the drawer, and that in consequence of such failure to show a legal demand, they had not been able to recover the amount of the previous indorser. They institute the present action against the bank and the notary, to recover back the amount of the two notes, with costs of the suit against the indorser, and they pray judgment against both defendants insólida. Judgment was rendered accordingly in the court of the first instance, and the defendants appealed.

[388] The right of the plaintiffs to recover back from the bank the amount •of the two notes, depends upon their showing that they paid in error. The presumption resulting from the official character and certificate of the notary is, that due demand was made of the drawer, and the onus is upon the plaintiff to show that no such demand was made. It is not enough to show that the plaintiffs failed to recover against their immediate indorser in a case in which the bank was not a party.

The notary certifies in his protest, “ that he made diligent inquiry for the drawer of said note in order to demand payment, and was informed by Mr. Labatut that he resides at Pointe Ooupée, in this State, and is not now in the city — whereupon he protests,” &c. The evidence in this cause, as well as in that of the plaintiffs against their indorser, is entirely satisfactory, that the •drawer had his domicil in New Orleans at the time of the maturity of the note, and. that no demand was made of him in or at his domicil, as required by law to fix the liability of indorsers.

But the defendants’ counsel has called our attention to a hill of exceptions, taken to the refusal of the court to admit as a witness the notary by whom the protest had been made, and who was also a party defendant in this case; admitting that the plaintiffs could not deprive the hank of the testimony of their agent, by making him a party, yet it appears to us the court did not err in rejecting him as a witness. The bank had already the advantage of the official act and certificate of the same notary, which he could neither contradict nor strengthen by any verbal statements.

The right of the plaintiffs to recover of the notary himself, in solido with the hank, depends upon other principles. There is no privity between the plaintiffs and the notary who was the agent of the bank, and not theirs. Those cases in which notaries have been held responsible for neglecting to make proper demand, or to give due notice of protest, were between such notaries and those by whom they were employed.

It is therefore ordered, adjudged and decreed, that the judgment [389] of the district court be affirmed, so far as it relates to the bank of Louisiana, with costs; hut that it be revei'sed and annulled, as it relates to the defendant, William Christy, and that ours be for him, .with costs in both courts.  