such notice as it asserts to have been given.' When a statute makes the certificate of protest evidence of the facts stated therein. and it states the due mailing of notice to the proper post-office, properly directed, the mere fact that notice does not reach the indorser will not rebut the statements of the certificate."

§ 960a. Effect of custom and usage.-Proof of custom and course of business on the part of banks cannot dispense with documentary evidence, when such evidence is requisite in law to verify the act done, or to make it complete, such as protest and notice of dishonor, when these are necessary; but the custom or usage of a bank holding a draft in support of the belief expressed by the cashier (based on such usage and course of business) that the draft was duly presented is admissible in evidence, to be weighed by the jury.

961. How notice proved. The notice must be proved by the notary himself when he gives it, or by other witnesses in depositions duly taken as in any other case, or by examination ore tenus, at the trial. The certificate of protest is in no sense, unless by statutory enactment, a certificate of notice, nor is a certificate of the notary subjoined to the protest, nor a separate affidavit of the notary, admissible to prove the fact, it not being a legal form of testimony. When the notary undertakes to act as agent of the holder, the engagement does not inure to the benefit of any one but his principal, and, therefore, where the notary had engaged to give notice to the first and second indorsers, but only gave it to the second, of whom the holder received the amount of the bill, the second indorser who paid it could not sue him for not giving notice to the first.10

§ 962. Protest only evidence of facts stated.— It cannot be inferred from the mere fact of protest when it is admissible as evi

5. 2 Parsons on Notes and Bills, 498; Bank of Rochester v. Gray, 2 Hill, 231, disapproving Cape Fear Bank v. Steinmetz, 1 Hill, 45.

6. Wilson v. Richards, Minn. Sup. Ct., Oct., 1881, Alb. L. J., Jan. 7, 1882, p. 18, Clark, J.

7. Knickerbocker Life Ins. Co. v. Pendleton, 115 U. S. 341.

8. Dickens v. Beal, 10 Pet. 582; Miller v. Hackley, 5 Johns. 384; Lloyd v. McGair, 3 Barr, 482. See post, § 967.

9. Walker v. Turner, 2 Gratt. 536; Bank of Vergennes v. Cameron, 7 Barb. 144.

10. Morgan v. Van Ingen, 2 Johns. 204; Hobbs v. Chemical Nat. Bank, 97 Ga. 524, 25 S. E. 348, citing text.

dence of the manner and service of notice, or of the facts stated respecting the giving of notice, that any step was regularly taken, or any fact existed, which is not certified to. In other words, the adınission of the certificate of protest as evidence, only makes it evidence of such things as it distinctly states, and purports to give evidence of.

Therefore, where the certificate of protest is by statute admissible evidence of the facts stated as to notice, and it simply states that notice was addressed to the indorser at a certain place, without adding that such place was the post-office or residence of the indorser, there can be no inference that such was the fact, and the certificate is consequently insufficient in itself to prove due notice." Such, at least, is the view which has been taken in the cases cited in the subjoined note, and which seems to us consistent with reason and with the strict principles of the law merchant, which throws the burden of proving due notice on the plaintiff. But the Supreme Court of the United States, it seems, takes a different view, though this precise question was not before it. The question in the case before it arose upon a demurrer to evidence, the notary who made the certificate being examined as a witness, and testifying that he sent notice by mail addressed to the indorser at Alexandria, without any evidence that that was his place

11. Bradshaw v. Hedge, 10 Iowa, 402 (1860); Sprague v. Tyson, 44 Ala. 340 (1870). In Turner v. Rogers, 8 Ind. 140 (1856), the certificate stated that, "I notified Henry Turner and John H. Woodfill by letter to each at New Albany, Indiana, per mail the same day." The parties named were indorsers. The court said, there was "no evidence that the defendant resided at New Albany or anywhere else. The notary's statement in the protest that he notified the indorsers is qualified by specifying the manner in which it was done that is, by addressing notices to them at New Albany. The bill was drawn, indorsed, and payable in Ohio. There is no presumption that they resided in New Albany." To same effect, see also Sullivan v. Deadman, 19 Ark. 486. In Stiles v. Inman, 55 Miss. 472 (1877), notarial certificate stated that notice was mailed to Stiles, the indorser, at Vicksburg. The court said: "There was no evidence that Stiles, the indorser, resided at Vicksburg, or that Vicksburg was his place of residence, or his nearest post-office, or the one at which he received his mail matter. For all that appears, the notice might as well have been sent by mail to Boston or New Orleans,” and held that the proof of notice was insufficient, citing Walker v. Tunstall, 3 How. (Miss.) 259; Ellis v. Commercial Bank, 7 How. (Miss.) 294. The case of Raine v. Rice, 2 Pat. & H. 530 (1857), is often quoted for the same doctrine. The syllabus of the reporter is misleading, and no such question was decided, as is shown in Linkous v. Hale, 27 Gratt. 674 (1876). Hobbs v. Chemical Nat. Bank, 97 Ga. 524, 25 S. E. 348, citing text.

of residence; and the court held that the jury would have been warranted to infer that the indorser's residence was in Alexandria.12 In Virginia this case was recently cited with approval by the Supreme Court of Appeals, and applied where there was no evidence but the notary's certificate that he mailed notice to the indorsers at Blacksburg, Virginia; but while the court considered that on the demurrer to evidence, in which form the question arose, it should be inferred that their residence was at Blacksburg, it held that no such inference would be justified in the case. of a special verdict, it being an inflexible rule that the court, upon a special verdict, cannot infer other facts from those found by the

12. Bank of the United States v. Smith, 11 Wheat. 171 (1826). In this case it appeared that the notary who protested the note in Washington swore on the trial, being examined as a witness, that on the day of dishonor he put in the post-office notice of nonpayment, addressed to the defendant at Alexandria. This was the only evidence of due notice, and the defendant demurred to the evidence on the ground that it did not appear that Alexandria was the post-office to which notice should have been sent. Thompson, J., said, rendering the unanimous opinion of the court: "If the defendant's place of residence was Alexandria, it is not denied that but due and regular notice was given to him. The notary was a sworn officer, officially employed to demand payment of this note, and it is no more than reasonable to presume that he was instructed to take all necessary steps to charge the indorsers. This must have been the object in view in demanding payment of the maker. And it is fair also to presume that he made inquiry for the residence of the defendant before he addressed a letter to him, for it is absurd to suppose he would direct to him at that place without some knowledge or information that he lived there, this being the usual and ordinary course of such transactions and with which the notary was, no doubt, acquainted. The jury would, undoubtedly, have been warranted to infer from this evidence that the defendant's residence was in Alexandria. If that was not the fact, this case is a striking example of the abuse which may grow out of demurrers to evidence. For a single question to the witness would have put at rest that point one way or the other, if the least intimation had been given of the objection. It was manifestly taken for granted by all parties that the defendant lived at Alexandria. And if a party will upon the trial remain silent, and not suggest an inquiry which was obviously a mere omission on the part of the plaintiff, a jury would be authorized to draw all inferences from the testimony given that would not be against reason and probability, and the court, upon a demurrer to the evidence, will draw the same conclusions that the jury might have drawn." It will be perceived that this case does not determine the sufficiency of the evidence if it were merely contained in a statement of the protest. In such case the defendant could have no opportunity to cross-examine and to elicit the facts respecting reasonable inquiry by the notary, and although the decision just quoted militates strongly against the doctrine of the text, it is, therefore, not necessarily inconsistent with it.

jury.13 In a late case in Iowa it was said by the court that "the bare certificate of the notary that he notified the makers and indorsers is itself prima facie evidence that they were notified. If he specifies the mode in which he did it, such specification does not destroy the prima facie case, nor render it necessary to prove that such mode would effectuate such result, unless indeed it should appear affirmatively that the mode adopted could not have done so. But if the notary only certify the mode he adopted to give the notice, and not to the fact that he did give it, then, unless it further appeared that such mode would effectuate notice, the certificate does not make a prima facie case." 14 This distinction is very refining, and without just ground. In Indiana it was not taken in a similar case.' A certificate of notice to a drawer sent to a place where the bill bears date would stand on a different footing, that being presumably the drawer's place of residence.16 So where the protest states that notice of protest "was left at the boarding-house of A. B., or the office of C. D., it is not sufficient evidence that it was left in the proper manner.17 And where it states presentment of a note payable at bank to the cashier, it has been held that it is not to be inferred that the note was in the bank, or unless it was in the bank, that the cashier was at the bank, but that might be proved by other testimony.18

15

13. Linkous v. Hale, 27 Gratt. 668-674 (1876), Moncure, P. See Slaughter v. Farland, 31 Gratt. 134; People's Bank v. Scalzo, 127 Mo. 164, 20 S. W. 1032, text cited.

14. Walmsley v. Rivers, 34 Iowa, 466 (1871). In which case the notary certified that he notified the indorsers, and that he delivered the notice at the post-office addressed to them, "Des Moines." And the case was distinguished from Bradshaw v. Hedge, 10 Iowa, 402 (supra), in which the notary merely stated that he put notice in the post-office addressed to a certain place named.

15. Turner v. Rogers, 8 Ind. 140.

16. See chapter XX, on Presentment for Payment, vol. I, § 639, and chapter XXIX, on Notice, vol. II, §§ 1030, 1031.

17. Rives v. Parmley, 18 Ala. 262, Dargan, C. J., said: "Notice might have been left at the boarding-house of the defendant in a manner wholly insufficient to charge him. Indeed, the notice might have been left at the house on the day stated, and yet the notary might have been guilty of gross neglect, as if he had merely stopped at the house and left the notice without inquiry for the defendant, or saying a word about the object of his visit, or delivering the notice to any one to be handed to the defendant, when he could have delivered it to the party himself by inquiring for him."

18. Magoun v. Walker, 49 Me. 420; Seneca County Bank v. Neass, 5 Den. 329; ante, § 644. But see Barbaroux v. Waters, 3 Metc. (Ky.) 304, and ante, § 659.

§ 963. As to the mere fact that due notice was given, however, when there is no question raised as to the person upon whom, or the place where, it was served, the certificate that "due notice was given or mailed, or that the person was duly notified," is sufficient evidence that the notice in itself corresponded to the protest, and was in proper legal form.

A legal notice is a definite legal instrument, and where a statute makes the certificate of the notary evidence as to the service, or as to facts stated respecting notice, it would seem, that his certificate that notice was given, would be as definite as if it detailed the minutia of the instrument thus described.19 But it has been held, that the protest, unless it states the contents of the notice, is only evidence that what purported to be notice was sent, and not of its sufficiency in law.20 It seems to us that the separate facts as to service and place, and person should be stated, but that the contents of the notice are to be presumed to be conformable to law.

§ 964. Presumptions in favor of protest. But legal presumptions are made in favor of the protest under proper circumstances. Thus, when the certificate of protest states that demand was made of the clerk of the drawee, found at his office or place of business, the drawee himself being absent, it is evidence not only of the fact of demand, but also that the person named was the drawee's clerk, duly authorized to refuse acceptance or payment.21 And it would be presumed, if not stated, that the drawee was absent.22 So (where it is evidence as to notice), if it state that notice was left" at the indorser's desk in the custom-house, he being absent, with a person in charge," it is prima facie evidence that such was his place of business, and that it was properly left there, it not appearing that better service could have been made.23 So, if it

19. Tate v. Sullivan, 30 Md. 464; Pattee v. McCrillis, 53 Me. 410; Orono Bank v. Wood, 49 Me. 26; Lewistown Bank v. Leonard, 43 Me. 144; Ticonic Bank v. Stackpole, 41 Me. 321; Simpson v. White, 40 N. H. 540; Bushworth v. Moore, 36 N. H. 144; Galladay v. Bank of Union, 2 Head, 57; Union Bank v. Middlebrook, 33 Conn. 95; McFarland v. Pico, 8 Cal. 626; Kern v. Van Phul, 7 Minn. 426.

20. Ducket v. Van Lilienthal, 11 Wis. 56; Smith v. Hill, 6 Wis. 154; Kimball v. Bowen, 2 Wis. 224. See post, § 1051, and notes.

21. Nelson v. Fotterall, 7 Leigh, 179; Stainback v. Bank of Virginia, 11 Gratt. 260; Whaley v. Houston, 12 La. Ann. 585.

22. Gardner v. Bank of Tennessee, 1 Swan, 420.

23. Bank of Commonwealth v. Mudgett, 44 N. Y. 514.