
    Lemuel Smith vs. Felix G. Gibbs.
    The protest of a promissory note is no evidence of the demand of payment of the note, for the latv does not require that the note should be protested.
    A protest, stating that payment was demanded, but saying nothing as to presentment, is defective on its face, and inadmissible in evidence.
    Where it is in proof that the notary’s clerk made demand of payment of the note, ^and the protest of the notary states that-he -himself made the demand, the protest should be ruled out as evidence, or the jury instructed to disregard it, because it was a false certificate.
    where the clerk of a notary made the demand of payment of the note sued on, and in his deposition testifies “ I made the demand, Martin Cartwell (the notary) made the protestHeld, that the evidence of the clerk was not sufficient evidence of a legal demand of payment.
    In error, from the circuit court of Marshall county.
    Felix G. Gibbs sued Lemuel Smith, in the circuit court of Marshall county, in an action of assumpsit, as indorser of a promissory note, made by Meacham, M’Kee & Person, payable on the first of April, 1839, tó Smith, or order, for eight hundred and fifty-one dollars, at the Branch of the Union Bank of Tennessee, at Jackson. The note was indorsed to Gibbs by Smith. The declaration averred that the makers were citizens of-the state of Tennessee, and therefore not sued jointly with the indorser. The declaration was in the usual form. The defendant pleaded non assumpsit. The case was submitted to the jury, who found a verdict for Gibbs, for one thousand and fifty-two dollars.
    At the trial the plaintiff below read to the jury the note sued, and a protest attached to it, signed “ Martin Cartwell, notary public.” The protest certified that the notary had, at the request of the president, directors qnd company of the Union Bank, at Jackson, demanded payment of the note at their office of discount, at Jackson, where the note was payable; that he was answered by the cashier, that no provision had been made for it, whereupon he protested it. On the back of the protest was a copy of the note, and this certificate ; “ I do certify that I, this day, delivered notice to the makers and last indorser, in person, and left one at the residence of Lemuel Smith, he being absent. Given under my hand and seal, this 4th of April, 1839. Julius Johnson. [Seal.]”
    The defendant’s counsel objected to the introduction of the protest as evidence, but his objection was overruled, and he excepted.
    The plaintiff then read various depositions to the jury.
    Martin Cartwell testified, that he was the notary whose name was signed to the protest; that his clerk, Julius Johnson, made out the protest, and he signed it on the day it bears date; that he did not serve the notices of the protest, it was the business of his clerk to do so, and that he presumed it had been done; that the protest was made at the request of the bank, and that Lemuel Smith, at the time of the protest of the note, resided in Jackson, where it was protested.
    Julius Johnson, testified that he held no office under the'bank, but was the agent of the notary, and his clerk, that he served the notices of protest in the mode stated in his certificate on the back of the protest.
    Upon cross-interrogation, as to who made the demand, and the protest, and served the notices, he answered, “Imade the demand, Martin Cartwell made the protest, and I gave the notices.”
    John W. Campbell, stated, that he was cashier of the bank, at Jackson, when the note was protested; that no part of the note, to his knowledge, had ever been paid, except the notarial fees, which Felix G. Gibbs paid when he withdrew the note from the bank, where he had deposited it for collection, that he himself had no distinct recollection of who made the demand of payment of the note, but he presumed it was Julius Johnson.
    The points and testimony, with reference to the residence of Smith, are not noticed here, because they did not enter into the consideration of the court.
    
      Gholson, for plaintiff in error.
    The plaintiff in error, Smith, was sued a's indorser of a promissory note, by the defendant in error, Gibbs.
    
      The note sued on, in this case, was payable at the branch of the Union Bank, at Jackson. The only evidence found in the record, of any demand of payment, is the protest, which the court permitted to go to the jury, as evidence, and to which the counsel for Smith objected, and took an exception. The facts clearly show, that this protest’ was inadmissible, having been made, not by the notary, but by his clerk. The notary expressly states, that he knew nothing of the demand, &c., except what he learnt from his clerk, rvho prepared the protest, and he signed it.
    It may be said, that this being a promissory note, no protest was necessary. This may be true; but still a demand must be shown, either by the protest, or by evidence. In this case the protest is the' only evidence of demand, which was relied on. The clerk of the notary, who made the demand, if any was made, is not even asked whether he made a demand or not, by plaintiff below. He is asked, in a cross-interrogatory, who made the demand. He answers that he did; but not stating when, or of whom, of course his answer amounts to nothing. The demand, in this case, might have been proved, by showing that the note was in the bank, during the banking hours, on the day the note became due; but no such testimony is found in the record. The plaintiff below relied exclusively on the protest, as evidence of the demand; the reading of that, as evidence, was objected to, and it should have been rejected. For this error, it is submitted, that the judgment below should be reversed.
    Another question might arise in this case, in relation to the notice of protest, or demand, and in relation to demand itself, had it been proved. It is submitted, that not only must demand be made, but notice given by some person duly authorized. The notice given in this case, rvas by the clerk of the notary, who expressly states, in his answer, that he had no authority to do so from the bank, or the holders of the note, but merely acted as the clerk and agent of the notary. A notary public, in giving notice of demand, acts as the agent of the holder of the note, and it is contended that he cannot delegate such agency.
    Hughes, for defendant in error.
    The only question in this cause is, whether demand was made and notice given of nonpayment of the paper sued on, to the plaintiff in error, defendant below.
    Julius Johnson'proves that he made demand at the maturity of the note, and gave notice, by leaving notice at the residence of the defendant, he being absent.
   Mr. Justice Sharkey,

delivered, the opinion of the court.

The question in this case is, as to the sufficiency of the demand and notice of nonpayment of a promissory note, to bind the indorser. The note was payable at the branch of the Union Bank of Tennessee, at Jackson. On the trial, the depo-. sition of the notary public, and the deposition of his clerk were introduced, after the protest had been read to the jury. The protest was objected to, but admitted.

It appears, both from the depositions of the notary, and the clerk, that the only agency the notary had in the matter, was to affix his name to the protest, prepared by the clerk. The clerk did everything else. The notary states that it was the business of his clerk to make demand, and give notices of nonpayment. On the protest, is a memorandum signed by the clerk, which was also read, by which he certifies that he “ delivered notice to the maker and last indorser in person, and left one at the residence of Lemuel Smith, he being absent.” The protest and memorandum were improperly admitted for several reasons. A protest, except in the case of a foreign bill of exchange, is not evidence of anything; certainly it is not evidence of the demand in case of a promissory note/for ^the law does not require that it should be protested. But it was also defective on its face; it states that payment was demanded, but says nothing as to presentment. A demand, to be val id, must be accompanied by a presentment, Tor the maker is not bound to pay unless his note can be lifted. A lost note would con-stitnte an exception. Freeman v. Boynton, 7 Mass. Rep. 483. Carmichael v. Bank of Pennsylvania, 4 Howard, 567. But if it contained a statement that the note had been presented, still it should have been ruled out when its true character was disclosed by the evidence, or at least, the jury should have been told to disregard it, because it is a false certificate. The notary certifies that he made demand, but it was in proof that he did not; it was made by his clerk. A notary cannot act through a clerk, unless there be some provision in the laws of Tennessee authorizing it, as to which we are not informed. Carmichael v. Bank of Pennsylvania, above cited.

But as a protest was not necessary in this case, if there was any evidence of a legal demand, the admission of the protest might be regarded as an immaterial circumstance; but there is no such proof. The notary states that he made no demand, that it was the business of his clerk to do so. The clerk in his deposition says, “I made the demand, Martin Cartwell made the protest, and I gave the notices as stated in my answer to direct examination.” This is the only evidence of demand. Now suppose that a mere demand, without presentment, should be deemed sufficient, still this evidence does not show how, when, where, or of whom the demand was made. The clerk does not even state that he made the demand at the time, and in the manner stated in the protest. This evidence is too uncertain and unsatisfactory, to entitle it to be received as proof, of a demand. So that apart from the protest, there is nothing which shows a compliance with' the law. If the protest could be allowed to* aid the testimony,, still that falls short of the legal requirement, in not stating a presentment of the note.

This note was payable in bank, and if there was any proof showing that it was in the bank on the day of its maturity, that circumstance might amount to a sufficient presentment, but there is none. The cashier of the bank was examined, who stated that Gibbs paid the protest fees, when he withdrew the note, which had been deposited for collection, but when so deposited or when withdrawn, does not appear. The cashier says that he had no recollection as to who made the demand. As there was no evidence by which the liability of the indorser was legally established, the motion for a new trial should have been sustained.

Judgment reversed, and new trial awarded.

Judge Clayton, having been counsel, gave no opinion.  