
    THE BR. BANK AT DECATUR vs. HODGES.
    1. Where the drawees of a bill of exchange absent themselves from their place of business and make no provision for its payment, a presentment there to their book-keeper is a sufficient presentment to charge the drawers.
    2. The holder of a bill of exchange does not waive his right of action for its non-acceptance by afterwards having it presented and protested for non-payment.
    Error to the Circuit Court of Morgan. Tried before the Hon. Geo. W. Lane.
    This was an action by the plaintiff against the defendant in error on a bill of exchange drawn by the firm of F. Hodges & Co., of which the defendant was a member, on Kirkman, Abernathy & Hanna, N. Orleans. The facts and errors complained of are.sufficiently noticed in the opinion.
    Wm. Cooper, for plaintiff, insisted—
    1. That the ruling of the Circuit Court was erroneous, and cited Cuthbert v. Newell, 7 Ala. 457; Smith v. Armstead, ib. 60S.
    2. That the charge of the Court was incorrect, and cited Lenox v. Cock, 8 Mass. 460; Bayley on Bills, 215, note A., and cases there referred to.
    Peters & L. P. Walker, for defendant:
    1.. There was no error in excluding the protest for non-payment. The presentation for payment must be to the party who is liable to pay — i. e., the drawees. A presentation to their hook-keeper, without shewing either a general or special authority, certainly does not answer the demands of the law. — Story on Bills, p. 400, sec. 344 to 350; Smith’s Mer. Law, 239, et seq.; Chitty on Bills, 353, ch. 9; ib. 355-366; 8 Porter,511; ib. 174; 6 Ala. 390; 1 ib. 544.
    2. Unless a charge is illegal, it should be given in the words in which it is asked. If the opposite party desires any modification of it, he should suggest it to the court. — 9 Ala. 452; 11 Ala. 535; 11 Ala. 1059.
    3. Under the state of facts, there was no error in the charge given. The plaintiff certainly had the right to waive its action by virtue of the protest for non-acceptance; and if it chose to rely on presentment and protest for non-payment, the evidence offered to establish this fact must shew presentment to the proper person, and failing in this, it was the duty of the court to reject the evidence.
   CHILTON, J.

The court below excluded the protest for non-payment because the presentment is stated therein to have been made of the book-keeper of the drawees in their counting-room, they being absent. This was erroneous. The bill was presented at the place of business of the firm — at their counting-room. If they had intended to pay the bill, it was their duty to have been present on the day of payment, or to have left the means for making such payment in charge of some one authorised'.to make it. The notary finding them absent from their place of business and their book-keeper there, might well make protest of the dishonor of the bill for non-payment upon presentment to and refusal by him. When upon presentment for acceptance the drawee does not happen to be found at his house or. qqunting-room at the time, but is temporarily absent, and no.ope. is-there authorised to give an answer whether the bill will be accepted or- not, in such case it would seem the holder is not bound, to consider-it as a refusal to accept, but he may wait a reasonable time for, the rqturn of the drawee. He may present the bill anew on the next day, but-this delay is not allowable in a presentment for payment, Tips must be made on the day, thebill falls due,, and if there be no one ready a.t the place to pay the, bill, it should be treated as dishonored and protested for non-payment. — Story on Bills, sec. 250; Chivy, on Bills, 9 ed. 400 ; Buxton v. Jones, 1 Mann & Gr. 83 ; S. C., 39 Eng. C. L. Rep. 364; Hine v. Allely, 4 Barn. & Adol. 624;, S. C., 24 Eng. C. L. Rep. 127; Shed v. Brett, 1 Pick. Rep. 412; Field v. Mallett, 3 Hawks’ Rep. 465; 1 Amer. Lead. Cases, 214-219, where the most'of the American decisions arq. refered.to., As, the notary might well have protested the bill for?non-payment by reason qf the absence of the dra.we.es, without leaving any one authorise,d to make the payment, a demand of the book-keeper of payment would certainly nqt have the effect, of vitiating, the protest — at most it would be treated as. surplus-age. This view perhaps sufficiently disposes of the case. In. respect to the, charge, however, we would remark that if it is to;, be regarded as. affirming that because the holder of the bill, after,it was protested", Idr non-acceptance, presented it also fo.r. pay-, ment and caqsed it to. be protested for non-payment, he thereby, waived his right of action which accrued upon th,e; non-accept-.. anee, it is manifestly erroneous. Whether there was proof-justifying a chargq a,s to the plaintiff’s waiver, of his right of ac-.. tion which accrued.upon.the dishonor of, the bill by thq refusal, of the drawees toapeept, we know nqt:. Certain it is that the record before us furnishes nqnq., T,he charge, however, coptaining the assertion qf,a legal.prp.fiqsition, would be considered as predicated upon ^pfficie.nt testimony, in the absence of all evidence furnished by* tfiq. bijbqf exceptions, showing it to be_ übstrtick

It is, hoivever, unnecessary to go into a critical examination of the charge, as the 'views above expressed will be sufficient for the proper disposition of the cause.

Let the judgment be reversed and the cause remanded.  