21

correctness of this rule,' 18 which the statute seems to have removed by requiring a protest to be under the hand and seal of the notary making it. In any event, under the statutes of most of the States a certificate of protest which is not authenticated by the hand and seal of the notary is not admissible in evidence.19 The protest must state the time when the presentment was made,20 but the hour of presentment need not be stated. The protest should also state specifically the place where the presentment was made.22 It is not sufficient to state that the presentment was made to the cashier of a bank, where it is necessary that the presentment be made at a bank.23 The protest of a bill made payable at a bank, and of which the bank itself is the holder, need not give the name of the person or officer of the bank to whom the bill was presented, and by whom the answer was made.2 Where a party has no place of business or residence, or has removed, the protest must set forth the nature of the inquiries made to ascertain his whereabouts, in order to show due and reasonable diligence in making presentment.

25

24

c. Certificate of protest as evidence. Since the protest of an inland bill of exchange or promissory note is not necessary, a certificate of such a protest is not evidence of a demand and notice of dishonor.26 By statute in nearly all the States the certificate

18. Donnigan v. Wood, 49 Ala. 242, 20 Am. Rep. 275; Kirksey v. Bates, 7 Port. (Ala.) 529; Rochester Bank v. Gray, 2 Hill (N. Y.), 227.

23. Seneca County Bank v. Neass, 5 Den. (N. Y.) 329.

24. Hindeburn v. Turner, 5 How. (U. S.) 69, 12 L. Ed. 54.

19. Rindskoff v. Malone, 9 Iowa, 25. Baumgardner v. Reeves, 35 Pa. 540, 74 Am. Dec. 367; Jordan v. Long, St. 250. A certificate of the notary 109 Ala. 414, 19 South. 843; Stewart on the draft stated that he presented v. Russell, 38 Ala. 619. If a certifi- the draft at the place of business of cate of protest is properly authenti- the drawee to the person in charge. cated by the seal of the notary, no It appeared that the drawee had two proof of his signature or of his authority to act is necessary. Sims v. Hundley, 6 How. (U. S.) 1, 12 L. Ed. 319; Crowley v. Barry, 4 Gill (Md.), 194; Ross v. Bedell, 5 Duer (N. Y.), 462.

20. Palmer v. Lee, 7 Rob. (La.) 537; Burk v. Shrieve, 39 N. J. L. 214; Gardner v. Bank of Tennessee, 1 Swan (Tenn.), 419.

21. Cayuga County Bank v. Hunt, 2 Hill (N. Y.), 635.

22. Stix v. Matthews, 75 Mo. 96; Seneca County Bank v. Neass, 5 Den. (N. Y.) 329; Gardner v. Bank of Tennessee, 1 Swan (Tenn.), 419.

places of business in the same city. It was held that the certificate failed to show that the draft was presented at the place where it was made payable. Brooks v. Higby, 11 Hun (N. Y.), 235.

26. Protest of inland bill not evidence of demand and notice.- In the case of Union Bank V. Hyde, 6 Wheat. (U. S.) 572, 5 L. Ed. 333, the court said: "The protest belongs altogether to foreign mercantile transactions, upon which it is an indispensable incident to making a drawer of the bill or indorser of the note liable. On foreign bills it is the evi

of a notary public duly attested by him is presumptive evidence of the facts stated therein, and such statutes apply to inland as well as foreign bills, although it has been held that they only apply to certificates of notaries made within the State.27 As to all foreign bills a notary's certificate as to demand of payment and notice of dishonor is prima facie evidence of the facts therein stated.28 While the certificate is prima facie evidence of the facts therein stated it is not so conclusive as to exclude evidence

dence of demand, and an indispensable step toward the legal notice of nonpayment, in consequence of which the undertaking of the drawer or indorser becomes absolute, hence as to foreign transactions it is justly predicated of the protest that it has a legal or binding effect, but the writing under consideration has reference exclusively to inland bills and as to them the protest has no legal or binding effect. The indorser became liable only on demand and notice, and of these facts the protest is no evidence."

In another place the court says: "By some assumed analogy, or mistaken notions of law, this practice of protesting inland bills has now become very generally prevalent; and since the inundation of the country with bank transactions, and the general resort to this mode of exposing the breaches of punctuality which occur upon notes, a solemnity, cogency, and legal effect have been given to such protests in public opinion, which certainly has no foundation in the law merchant. The nullity of the protest on the legal obligations of the parties to an inland bill is tested by the consideration, that independently of statutory provision (if any exists anywhere), or conventional understanding, the protest of an inland bill is no evidence in a court of justice of either of the incidents which convert the conditional undertaking of the indorsers into an absolute assumption. See also the following cases: McAllister v. Smith, 17 Ill. 328, 65 Am. Dec. 651; Bond v. Bragg, 17 Ill. 69; Bank of United States v. Leathers, 10 B. Mon. (Ky.) 64; Follam v. Dupre, 11 Rob. (La.) 454; Williams v. Smith, 21 Mo. 419; Miller v. Harkley, 5 Johns. (N. Y.) 4 Am. Dec. 372.

375,

27. Kirtland v. Wanzer, 2 Duer (N. Y.), 278; Daniel v. Downing, 26 Ohio St. 578.

28. Notary's certificate of protest of foreign bill is evidence of facts stated therein, see:

United States.- Sims V. Hundley, 6 How. 1, 12 L. Ed. 319; Townsley v. Sumrall, 2 Pet. 179.

Alabama.-Martin v. Brown, 75 Ala. 442; Bradley v. Northern Bank, 60 Ala. 252.

California.- McFarlane v. Pico, 8 Cal. 626.

Georgia.-Fuld v. Thornton, 1 Ga.

306.

Indiana.- Turner v. Rogers, 8 Ind. 139; Fisher v. State Bank, 7 Blackf. 610.

Kentucky.- Tyler v. Bank of Kentucky, 7 T. B. Mon. 555; Bank of Kentucky v. Pursley, 3 T. B. Mon. 238.

Maine.- Patee v. McCrillis, 53 Me. 410; Loud v. Merrill, 45 Me. 516.

Maryland.- Citizens' Bank V. Howell, Md. 530, 63 Am. Dec. 714; Ricketts v. Pendleton, 14 Md. 320.

Minnesota.- Bettis v. Schreiber, 31 Minn. 329, 17 N. W. 863.

Missouri.-Moore v. Missouri Bank, 6 Mo. 379; Guffet v. Dowdall, 17 Mo. App. 280.

V.

New Hampshire.- Simpson White, 40 N. H. 540; Rushworth v. Moore, 36 N. H. 188.

New York.- McAndrew v. Radway, 34 N. Y. 511; Dunn v. Devlin, 2 Daly, 122; Bank of Commonwealth v. Mudgett, 44 N. Y. 514.

North Carolina.- Gordon v. Price, 32 N. C. 385.

Ohio.- Daniel v. Downing, 26 Ohio St. 578.

Pennsylvania.- Sherer V. Easton Bank, 33 Pa. St. 134; Baumgardner v. Reeves, 35 Pa. St. 250.

29

either explanatory or contradictory.2 Since the certificate is only presumptive evidence of the facts therein stated, evidence that the party never received the notice is competent to show that it was not so mailed and directed.30 If it appears from the face of the certificate that the notary himself has not personally performed the acts to which he has certified, it is not evidence of their performance.31 As public officers, notaries are entitled to the presumption of law that they have performed their duty, unless the contrary appears; and the certificate must be read in harmony with the performance of such official duty unless the contrary construction is clearly indicated.32

33

The certificate is presumptive evidence of notice only when it recites facts showing that such notice has been given. A statement in the certificate that the bill was presented by the notary and payment demanded, imports a demand according to the tenor of the bill,34 and where the certificate states that notice of protest to an indorser was directed to a certain place which was his reputed place of residence, it is presumptive evidence that the place so specified was the reputed place of residence of the in

Tennessee. Rosson v. Carroll, 90 Tenn. 90, 16 S. W. 66, 12 L. R. A. 727; Sulzbacher v. Bank, 86 Tenn. 201, 6 S. W. 129; Spence v. Crockett, 64 Tenn. 576.

29. Orono Bank v. Wood, 49 Me. 26; Adams v. Wright, 14 Wis. 408; Sexton v. Perrigo (Mich.), 85 N. W. 1096.

Certificate only presumptive evidence. In the case of Spence v. Crockett, 5 Baxt. (Tenn.) 576, it was held that the statements made by a notary raise a presumption; they are prima facie true but they are open to rebuttal; being but prima facie evi dence it may be overturned by any legal testimony that will satisfy the tribunal having cognizance of the question in dispute, that the recitals on the instrument of protest are in fact untrue. In the case of Meise v. Newman, 76 Hun (N. Y.), 341, 27 N. Y. Supp. 708, it was held that a certificate of protest is only presumptive evidence and the court said: "Although the certificate of the notary was offered in evidence in regard to this note, that it was duly presented for payment, which was duly demanded and refused, yet upon an examination of the notary, it appeared

that such presentment had not been made by him and that he had no personal knowledge of its having been presented. He was told that it had been presented, and then protested the note and mailed notices. This was clearly insufficient. It showed that he had no knowledge of the verity of his certificate, and the presumption of its accuracy was rebutted."

Bank V.

30. Townsend v. Auld, 10 Misc. (N. Y.) 344, 31 N. Y. Supp. 29. 31. Onondaga County Bates, 3 Hill (N. Y.), 53. 32. McAndrews v. Radway, 34 N. Y. 511.

33. Bradshaw v. Hedge, 10 Iowa, 402; Ticonic Bank v. Stackpole, 41 Me. 321, 66 Am. Dec. 246. In the case of Legg v. Vinal, 165 Mass. 555, 43 N. E. 518, it was held that a statement in the protest of a promissory note, the note remaining unpaid, that the notary "duly and officially" notified the person who signed the note on the back thereof before delivery of its dishonor, by written notice sent by mail to a certain town requiring payment, is sufficient, without also stating that such town was his correct residence or address.

34. Dakin v. Graves, 48 N. H. 45.

dorser. 35

And where the certificate states that a bill was duly presented for payment it is presumptive evidence of presentment during the proper hours of business.36

156. By whom protest to be made.

a. Statutory provision.- The Negotiable Instruments Law provides that: "Protest may be made by:

"1. A notary public; or

"2. By any respectable resident of the place where the bill is "dishonored, in the presence of two or more credible witnesses." 37 This provision follows the English Bills of Exchange Act which expressly permits, when the services of a notary cannot be obtained at the place where the bill is dishonored, any householder or substantial resident of the place in the presence of two witnesses, to give a certificate, signed by them, attesting the dishonor of the bill.38

It

b. In general.- Independent of the statute the protest should in all cases be made by a notary public, but if no notary can be conveniently found, it has been held that the protest might be made by a private person in the presence of two witnesses.39 has been held that a notary public who was an officer and stockholder in a bank could not legally protest a bill held by it, for the reason that being an interested party he was incompetent as a witness.* 40 But the cases upholding this doctrine are no longer applicable because of statutes providing that no person shall be excluded from being a witness by reason of interest in the cause

foreign bill) and a notary is the proper officer to certify it, yet it does not follow that if there is no notary all recourse on the bill must be lost. It is more agreeable to the analogy of our law, that inferior evidence in such case should be allowed. This inferior evidence the law has been careful to select and not to trust to every kind. Hence some substantial person must protest the bill, in the presence of two credible witnesses, who can prove the fact, the person protesting being allowed to draw up and certify the fact in usual form. This mode seems to have been substantially pursued." See also Daniel on Negotiable Instruments, § 934a.

40. Herkimer County Bank v. Cox, 21 Wend. (N. Y.)119, 34 Am. Dec. 220; Bank v. Porter, 2 Watts (Pa.), 141.

of action.41 The cashier of a bank, although himself the maker of a note held by the bank, may act for it in protesting the note, and if notice of protest is duly sent by him as a notary to the indorser the latter will be properly charged thereby."2 The notary can only act in protesting a bill, in the county for which he is appointed.43 It may be stated as a general rule that the protest should be made by the notary himself, and that he cannot delegate his official character or his functions to another; it cannot be made by his clerk or deputy or by any other person acting as his agent. But where the statutes of a State authorize notaries to appoint deputies, a protest made by such deputies would be recognized as sufficient. If the custom and usage of a place permits a protest to be made by a clerk of the notary, it is probable that such protest would be valid.46

§ 157. When protest to be made.

66

The Negotiable Instruments Law provides that:

When a

bill is protested, such protest must be made on the day of its dishonor, unless delay is excused as herein provided. When a "bill has been duly noted, the protest may be subsequently ex"tended as of the date of the noting." 47 This section follows somewhat the provisions of the English Bills of Exchange Act.48

41. Notary not precluded because an interested party.-N. Y. Code Civ. Proc., 828. And see Moreland V. Citizens' Sav. Bank, 97 Ky. 211, 38 S. W. 637. In the case of Nelson v. First Nat. Bank, 69 Fed. 798, 16 C. C. A. 425, the court said: "It is argued that the certificate of protest and the notice were incompetent because the notary was the cashier of the bank that held the note. It is true that, when the rule prevailed which disqualified any party interested in the action from testifying in the cause, some of the courts held that a party in interest could not protest commercial paper, on the ground that, inasmuch as he could not testify to the presentment, demand, and notice, he was disqualified from making evidence of these facts by his certificate. But in the Circuit Courts of the United States, interest in the litigation no longer disqualifies a witness; and this rule falls with its reasoning. A notary public who is

the cashier of a bank may now legally protest the bank's paper."

42. Dykman v. Northridge, 1 App. Div. (N. Y.) 26, 36 N. Y. Supp. 962, affd. in 153 N. Y. 662.

43. Neely v. Norris, 2 Head (Tenn.), 595, 75 Am. Dec. 753.

44. Commercial Bank v. Barksdale, 36 Mo. 563; Onondaga County Bank v. Bates, 3 Hill (N. Y.), 53; Commercial Bank v. Varnum, 49 N. Y. 269; Sacrider v. Brown, Fed. Cas. No. 12,205, 3 McLean (U. S.), 481.

7; Bank of Kentucky v. Garey, 6 B. 45. Lee v. Buford, 4 Metc. (Ky.) Mon. (Ky.) 626; Carter v. Union Bank, 7 Humph. (Tenn.) 548.

46. Commercial Bank v. Varnum, 49 N. Y. 269.

47. Neg. Inst. L. (N. Y.), § 263. For same section in statutes of other States see Appendix.

48. English Bills of Exchange Act, § 51 (4), which provides that, "Subject to the provisions of this act, when a bill is noted or protested, it must be noted on the day of its dishonor.