law as modified by statute.' In England, a protest is allowed by statute on inland bills of a certain description, and was at one time thought necessary to enable the holder to recover interest; but subsequent and uniform practice confirmed by a late decision, has settled that it is superfluous even for that purpose. In this country the like permission is given in many of the states, in respect to both promissory notes and inland bills; and in this state the notarial certificate of presentment and non-acceptance or non-payment of bills and notes, and of the service of notice thereof on the parties to the same, specifying the mode of giving such notice, is made presumptive evidence of the facts stated in the certificate; unless the defendant denies under oath the dishonor of the note or bill, or the receiving of notice. This certificate may be drawn up at any time, and must show presentment for payment and the giving of notice of non-payment by the notary himself."

The protest should be made as of the day on which the bill or note becomes payable, that is to say, on the third or last day of grace; though it need not be drawn up and completed in form until afterwards.' It should bear date or show that the protest was made on that day."

§ 796. The demand of payment and protest must be 586* made according to the law of the place where the bill is

Smith v. Little, 10 N. Hamp., 532; Nicholls v. Webb, 8 Wheat., 326; 3 Pick., 414.

1 The exceptions to the rule stated in the text are very rare, and always created by statute or local usage. 3 Kent's Com. 94, 7th ed., note. 29 and 10 Wm. III., c. 17; 3 and 4 Anne, c. 9; Harris v. Benson, 2 Stra., 910.

3 Windle v. Andrews, 2 B. and Ald., 796; 2 Stark., 425. Under the English statute the protest of inland bills is made on the day after the third or last day of grace; and the protest is required to be sent, or notice of it given, to the proper parties within fourteen days.

Code C. P., §§ 923, 924, 925; ante, 463-467, and, post, 695; see Schorr v. Woodlief, 23 La. Ann., 473.

5 Cayuga Co. Bank v. Hunt, 2 Hill R., 635.

6 Onondaga Co. Bk. v. Bates, 3 Hill R., 53; 4 Denio, 460; 4 Hill, 224; 3 Comst., 442. On this subject, see the former chapter: "Of non-acceptance and proceedings thereon."

In most of the states the certificate of the notary under his hand and seal, showing service of the notice of dishonor on the drawer and indorsers, is made by statute prima facie evidence of such service.

73 Wend., 456; Battertons v. Porter, 2 Litt., 388; id., 207; 4 J. J. Marsh, 332.

8 Leftiy v. Mills, 4 Term R., 170; Thomson on Bills, 315.

payable; it must be done by the notary in person; he cannot delegate his official authority. If, by the law of the place where the protest is made, the notary be authorized, as in Louisiana, to employ a sworn deputy to assist him in making protests and delivering notices, a presentment and protest by the deputy is good; for the appointment of a deputy, under the authority of law, like similar appointments made by a sheriff, clothes the person appointed with an official character.' This distinction is consistent with the general rule, and recognizes the reason on which it is founded. The notary is a known public officer, to whose formal protests and acts all countries give credit, so that his certificate of an act done by him is said to be equal to the testimony of two witnesses; a circumstance which shows clearly that the credit is given to his acts as a public officer, on the understanding that they are performed with the accuracy and discretion of an experienced man, invested with an official trust." Where, however, no notary can be pro cured the protest may be made by any person of the place where the bill is dishonored; but in such case the protest should be made in the presence of two witnesses.'

The notary to whoin a bil! is given for protest must follow the instructions given him; it is not his duty to determine the

1 Ellis v. Commercial Bank of Natchez, 7 How. Miss. R., 294; Carter v. Burley, 9 N. Hamp., 558; 4 Hill R., 129, Onondaga Co. Bank v. Bates, 3 Hill R., 53; 2 Hill R., 230; Rothschild v. Currie, 1 Q. B., 43; Turner v. Rogers, 8 Ind., 139; Carter v. Union Bk., 7 Humph., 548; Shanklin v. Cooper, 8 Blackf., 41.

It seems that the protest of bills made in another state authenticated by a seal recognized as sufficient by the law of the place where it was made, will not be held sufficient here also; Ross v. Bedell, 5 Duer, 462.

* Idem, Chitty on Bills, 458: correspondence with the notaries of Liverpool, and opinion of Ch. J. NELSON, 3 Hill R., 55-59. Ante, 466; see Presentment for Payment.

3 Carter v. Union Bank, 7 Humph. (Tenn.) R., 548; Chenowith v. Chamberlain, 6 B. Monroe, 60; Nelson v. Fotterall, 7 Leigh, 179.

3

4 Ante, 461, et seq.

Kirksey v. Bates, 7 Porter (16 Ala.) R., 529. "A notary public, it has been said, is an officer known to the law of nations: hence his official acts receive credence not only in his own country, but in all others in which they are used as instruments of evidence. He is certainly recognized by the law merchant, and his acts, to some extent, are indispensable to its efficacy. As in the case of a foreign bill, a protest is necessary to show its dishonor by the refusal of the drawce to accept or pay it.

Burke v. McKay, 2 How., 66; Read v. Bank of Ky., 1 T. B. Mon., 91. Bayley on Bills, 5th ed., 258; Todd v. Neal's Adm'rs, 49 Ala., 273; Story on Bills, § 276; ante, 461, et seq.

time of protest in violation of his instructions. If he follow the directions given him he is not liable to any one for any irregularity in his course.'

$ 797. Protest of foreign bills necessary.-The presentment of foreign bills and protests for non-payment are rendered necessary by the law merchant; but the mode of protest

and the day on which it should be made are prescribed 587* *by the law of the place where the act is to be done." If made by a notary under seal, in the usual form, the protest is received as due proof of dishonor: and it seems the notarial seal furnishes prima facie evidence that the protest is in due form, and if the law of the place require that the protest shall be under the notary's seal, it will not be evidence in another state without such seal."

It is not necessary in this place to consider at length the cases in which a formal protest may be dispensed with. It will be sufficient to state the rule in general terms: whenever notice of non-payment of a foreign bill is necessary to be given, a protest must also be made."

$ 798. Notice. - With the exceptions to be considered hereafter, notice must be given of the non-payment of every foreign and inland bill, promissory note and check, in order to charge the drawer and indorsers under the law merchant. Upon the principle that the rights and obligations of the parties are to be determined by the law of the place to which they had

1 Commercial Bank v. Varnum, 7 Hun, 236; S. C., 49 N. Y., 269.

2 Chanoine v. Fowler, 3 Wend., 173. If the protest be not made by a notary, it must be proved that it was made according to the law of the place. Bowen v. Newell, 13 N. Y., 290. The law of the place of payment determines whether days of grace arc or are not to be allowed.

3 Bank of Rochester v. Gray, 2 Hill R., 227; 9 N. Hamp., 558; see Presentment for Acceptance.

4 Carter v. Burley, 9 N. H. 558.

6

5 Ticknor v. Roberts, 11 La., 14.

5 Chitty on Bills, 455; 6 Wheat., 572; 1 Doug. (Mich.), 455. The protest may be excused by proving either that the drawer had no effects in the hands of the drawee, and no reasonable expectation that the bill would be honored, or that the drawer has waived the necessity by a promise to pay with knowledge of the circumstances, or beforehand. Kirksey v. Bates, 7 Porter R., 529; Coddington v. Davis, 1 Comst. R., 186; Union Bank v. Hyde, 6 Wheat., 572; may be proved by admission. Derickson v. Whitney, 6 Gray, 248.

reference in making the contract, there are some steps which the holder must take according to the law of the place on which the bill is drawn. It must be presented for payment when due, having regard to the number of days of grace there, as the drawee is under obligation to pay only according to such calculation; and it is therefore to be presumed that the parties had reference to it. So the protest must be according to the same law, which is not only convenient but grows out of the necessity of the case. The notice, however, must be given according to the law of the place where the contract of the drawer or indorser,* as the case may be, was made, *588 snch being an implied condition.'

$799. Form of notice.-No precise formula of words is necessary to be used in giving notice; it is sufficient, if the language used is such as, in express terms, or by necessary implication, to convey notice to the drawer or indorsers of the identity of the note or bill, and that payment of it on due presentment has been neglected or refused by the maker or acceptor. And it is immaterial whether the notice be verbal or in writing. The essential facts to be stated in a notice of protest in order to charge the indorser or drawer are, 1st, that the instrument has not been paid at maturity; 2d, that it has been protested for non-payment; 3d, the identification of the note. When such information is shown to have been conveyed with reasonable certainty it will be sufficient.*

1 Per Ch. J. NELSON, in Aymar v. Sheldon, 12 Wend., 439; Carroll v. Upton, 2 Sand. R., 172. "The law of the place where a bill is drawn governs as to the mode and place of the notice of non-acceptance and of nonpayment to be given to charge the drawer; and a different usage prevailing at the place where the drawee resides, or the bill is presentable, will not be admitted to control the drawer's liability." S. C., on appeal, 3 Comst., 272.

21 Comst. R., 413; Hartley v. Case, 4 Barn. & Cres., 339; Reedy v. Seixas, 2 John. Cas., 337; 9 Wend., 279; 9 Peters, 33; 11 Wheat., 431; 23 Wend., 620; 14 Conn., 363; 10 Shep., 392; Home Ins. Co. v. Green, 19 N. Y., 518; Hodges v. Shuler, 22 id., 114; S. (.. 24 Barb., 68; Thompson v. Williams, 14 Cal., 162; Bank of Old Dominion v. McVeigh, 29 Grat., 558; ante, 470-472; post, 593–600.

Cuyler v. Stevens, 4 Wend., 566; Glasgow v. Prattle, Missouri R., 336; Phillips v. Gould, 8 Car. & Payne, 356; ante, 470; Boyd's Admrs. v. City Sav'gs Bk., 15 Grat., 501; Thompson v. Williams, 14 Cal., 160; First Nat. Bank v. Ryerson, 23 la., 508; Woodin v. Foster, 16 Barb., 146.

The Artisans' Bk. v. Backus, 36 N. Y., 100.

§ 800. The notice must describe so as to identify the bill or note dishonored; "the language must be such as to convey notice to the party what the bill is, and that payment of it has been refused by the acceptor." Thus, where a letter written by an attorney contained a demand of payment of the sum of 150l., due on a draft by Mr. Case on Mr. Case, to prevent the necessity of law proceedings, it was held insufficient notice because it did not show the bill to have been dishonored.' So, the entire omission of the maker's name in the notice of dishonor would be fatal. But where the misdescription complained of was in the amount, the notice stating the note as one for $1457, when in fact it was for the sum of $1400, but had the figures 1457 in the margin and was discounted as a note for that amount by the bank; it was held the variance was not material, it being shown that the bank held no other note made and indorsed by the same persons; so, where the notice described the note as dated the 20th September, 1819, whereas it bore date, July 20th, 1819, there being no other note to which the description would apply; so a notice to the acceptor describing a bill as "drawn by you," though not naming the drawer, the bill being otherwise cor

rectly described, has been held sufficient; where a notice 589 possessing, *otherwise, every legal requisite, misdescribes the note or bill to which it refers, it is to be determined as a question of fact, or with reference to the circumstances of the case, whether the defendant could be misled by the misdescription. And for the purpose of solving this question it may be shown, in aid of the defect, that there was no other note in existence, to which the description contained in the notice could be applied.' Proof of such accessory facts may be given, because they go to show that the indorser was duly notified; and the evidence is not objectionable on the ground that it tends

1 Hartley v. Case, 4 B. & C. 339.

2 Home Ins. Co. v. Green, 19 N. Y., 518.

3 Bank of Alexandria v. Swan, 9 Pet., 33.

Mills v. The Bank U. S., 11 Wheat., 31; to same effect, Cayuga Co. Bk. v. Warden, 1 N. Y., 414. S. C., 6 N. Y., 19.

5 Gill v. Palmer, 29 Conn., 54.

6 McKnight v. Lewis, 5 Barb. R., 681; Kilgore v. Buckley, 14 Conn., 362; Artisans' Bk. v. Backus, 36 N. Y. 107; ante, 471.

Cayuga Co. Bank v. Warden, 1 Comst. R., 413. In both of these cases, the amount of the note was mis-stated in the notice; so in Reedy v. Seixas, 2 Johns. Cas., 337; 2 Selden R., 19; Knopfel v. Seufert, 11 N. Y. Leg. Obs., 355; Gill v. Palmer, 29 Conn., 54; Gates v. Beecher, 60 N. Y., 518.