CHAPTER VIII.

INDORSER'S CONTRACT CONTINUED: PROCEEDINGS UPON DISHONOR.

§ 1. PROTEST.

By the law merchant, the first step necessary after the dishonor of a foreign bill of exchange a step which is common and by statute permissible, but not necessary, in the case of inland bills and promissory notesis protest. This is a highly characteristic act, made, and ordinarily to be made only, by a public officer called a notary public. A notary public is an officer of international character, or at all events having international (and interstate) functions, and recognized the world over. And it is because the bill of exchange is a foreign international instrument that the services of a notary are required, if obtainable.1

Protest is manifested by a formal certificate, in writing under seal, of a notary, or of some one taking the place of a notary, by which he attests the dishonor of the dishonored paper. The step is wholly distinct and separate from presentment or any of the other steps necessary to fix an indorser's liability, though it is dependent for its validity upon due presentment.

Neither the law merchant nor statute has prescribed any form of words to be used in the certificate of protest; but the law merchant does require that certain facts should appear in it, in order to make it valid. These facts are the several ones going to show dishonor; to wit, due

1 When the services of a notary may be performed by another, see ante, pp. 102, 103.

presentment, demand, and refusal, or an equivalent, or a sufficient excuse for omission.1 This requires that the certificate should state time and place of presentment, and the person or persons to whom presentment was made. Thus, in regard to persons, if the bill has been accepted by more than one the certificate should state that presentment was made to all, or should state why it was not, as, for example, that the acceptors, being A and B, were partners, and that presentment was made to A.2 It will not suffice for the certificate to recite that 'due presentment' was made; that would be but inference, where, because the bill is a foreign international instrument, facts should appear.

The rule of the law merchant is thus exacting because by that law the certificate of protest of a foreign bill, if the certificate is in existence and obtainable, is the only evidence of the dishonor of the bill. The drawer, who presumptively lives abroad, is entitled (and by consequence the indorsers also, since their engagement runs pari passu with his) to know authoritatively that the dishonor has been real and such as to justify the steps by which his (and their liability) is fixed and made absolute. The notarial certificate is an international document, and stands or falls by itself; its deficiencies, if there be any, cannot be made good by evidence from without, however clear the facts may be, and whether the protest be for non-acceptance or non-payment.3 On the other hand, being such a document, it is more readily received in the courts than other

1 See Staniback v. Bank of Virginia, 11 Gratt. 260; People's Bank v. Brooke, 31 Md. 7; Farmers' Bank v. Allen, 18 Md. 475; Walmsley v. Acton, 44 Barb. 312; Musson v. Lake, 4 How. 262; L. C. 177.

2 Otsego Bank v. Warren, 18 Barb. 290; Nave v. Richardson, 36 Mo. 130.

3 Ocean Bank v. Williams, 102 Mass. 141; Buckner v. Finley, 2 Peters, 586; Orr v. Maginnis, 7 East, 359.

written instruments. The genuineness of the notary's signature need not be proved; his seal proves that. But evidence would be admitted, no doubt, that the seal was not genuine, and so that the whole certificate was fraudulent.

1

Nor indeed are the statements made in the certificate conclusive evidence, though they ought to be taken as strong evidence, and not so easily overturned as ordinary evidence. And the certificate is, like other written evidence of a transaction, within the general rule concerning the 'best' evidence; if the certificate exists, and can be produced, it must be produced to prove the dishonor; if it does not exist or cannot be produced, other evidence of dishonor is admissible, though proof must be furnished that the bill was in fact protested, or a sufficient excuse shown if it was not. The object of the certificate being merely to furnish evidence of sufficient dishonor, its statements of other facts, if such there be, cannot be received.

The States of the American Union, it should be remembered, are foreign to each other for the purposes of the law under consideration.2

Thus far of foreign bills. Of the protest of inland bills and promissory notes the law merchant knows nothing; and hence, so far as the protest of such paper is proper, it must stand on statute or the common law. The common law has never been held to authorize it; statute in many States does authorize it, and hence it must stand entirely upon the statute.a But statute has not put the pro

320.

8

1 Spence v. Crockett, 5 Baxt. 576; Ricketts v. Pendleton, 14 Md.

2 Bank of United States v. Daniel, 12 Peters, 32, 54; Commercial Bank v. Varnum, 49 N. Y. 269.

City Bank v. Cutter, 3 Pick. 414; Union Bank v. Hyde, 6 Wheat. 572; Nicholls v. Webb, 8 Wheat. 326; Kirtland v. Wanzer, 2 Duer,

278.

4 Hence, apart from statute the protest of an inland bill or a promissory note is no evidence of the facts stated, unless the notary has

test of paper of the kind on the footing of the protest of foreign bills; it only authorizes or permits the protest. The protest of an inland bill or of a promissory note is not then an act of the high character of the protest of a foreign bill. The certificate is not to be rejected because it does not contain all that would be necessary to show due protest under the law merchant; it is evidence of dishonor as far as it goes, its deficiencies may be supplied by external evidence.1 Probably it might be laid aside altogether, and the facts relating to dishonor proved as if there had been no protest. At best it ought not to be received to prove anything except the dishonor, unless statute give it greater force, though that fact is perhaps sometimes overlooked in practice.

The act of the notary or other in making the presentment must, as has already been stated, take place on the day of maturity of the paper. The formal certificate of protest, whether of a foreign bill or of other paper, need not, however, be made, and commonly is not made, at the time; it may be made at any subsequent time down to the time. of suit.2 But if the full certificate is not made out at the time of the dishonor, what is called a 'noting' should then, or at all events before the following day, be made; otherwise it seems that a certificate afterwards written out will be invalid. Noting consists in the making of minutes in brief of the facts to be stated in the certificate. The noting is not the protest; but if the notary should

deceased. Nicholls v. Webb, and Kirtland v. Wanzer, supra; Carter v. Burley, 9 N. H. 558. But see Colms v. Bank of Tennessee, 4 Baxt.

422.

1 Wetherall v. Clagett, 28 Md. 465; Seneca Bank v. Neass, 5 Denio, 329; Magoun v. Walker, 49 Maine, 419.

2 Bailey v. Dozier, 6 How. 23; Dennistown v. Stewart, 17 How. 606, 607.

8 Tassel v. Lewis, Ld. Raym. 743. See Leftley v. Mills, 4 T. R. 170, 174.

die before writing out the certificate the noting may take its place if it is, or, on explanation by one who understands it becomes, intelligible. So if the certificate should be lost or destroyed without the holder's consent.

§ 2. NOTICE OF DISHONOR: FORM.

The next and last step to be taken after protest, and where protest is not necessary and is not made, the next and last step after dishonor, is notice of the dishonor. Like presentment, that step is required of all paper in fixing the liability of an indorser, alent, unless there be an excuse.1 is not enough; the law requires the giving of notice, so as to apprise the indorser whether the holder looks to him for payment.2

that step or an equivKnowledge of dishonor

The law merchant has not prescribed any set of words to be used in the notice; here, as in other cases, it is satisfied if its requirements are met in substance. The act to

be performed is indeed less formal and more simple, and the law merchant is much less exacting, than in the matter of protest; just how much is required to make notice of dishonor good is a question upon which the authorities in certain particulars are in conflict. That which is agreed may be first stated.

The law merchant requires that the indorser should be apprised of the paper dishonored; but it is not exacting in the matter; if the indorser is correctly informed what instrument is dishonored, it matters not that there may a mistake in the description or reference. For example:

be

1 In regard to fixing the liability of the drawer of a cheque, see ante, pp. 52 et seq.

2 Bank of Old Dominion v. McVeigh, 29 Gratt. 546; s. c. 26 Gratt. 785, 852; Juniata Bank v. Hale, 16 Serg. & R. 157; L. C. 359; Magruder v. Union Bank, 3 Peters, 87; s. c. 7 Peters, 287.