102 est on a note after its maturity will not constitute a waiver where it does not appear that the indorser knew of the want of protest." Again, an express waiver of protest of a note payable a certain time after demand made operates to dispense with demand and notice.103 § 541. Waiver of protest-Parties.-The fact that the indorser of a note payable at a chartered bank is a president and also director does not dispense with the necessity of notice and protest to charge the indorser. The relation which the indorser sustains to the bank does not amount to a waiver of his right to such notice.104 But protest of a bill drawn and indorsed by a copartnership may be waived by one of its members, even though he is cashier of the bank which has discounted such bill;105 although a settling partner, after dissolution of the firm, has no power to waive protest of a draft then given to pay a partnership debt, and so bind a former dormant partner.106 In case of notes indorsed by a corporation it is decided that its secretary may make a binding agreement to waive protest.107 And a maker's general waiver of protest as to his paper in a bank is sufficient to justify recovery on an unprotested instrument held by such bank, notwithstanding other paper held by that bank had been protested.108 Protest of a note of an insolvent indorser may also be waived by the curator.109 But diligence must, it is held, nevertheless be exercised in bringing action against the maker, even though protest of a non-negotiable note has been waived by the assignor.110 And although there is no protest or waiver of protest as to other indorsers, still a first indorser may orally waive protest and insist upon contribution if held liable and forced to pay.111 § 542. Certificate of protest-Evidence.-It is declared that it is not disputed that, by the general custom of merchants in the United 102 Werr v. Kohles, 71 N. Y. Supp. 713, 64 App. Div. 117. 103 Cooke v. Pomeroy, 65 Conn. 466, 32 Atl. 935. 104 Ennis v. Reynolds (Ga. 1906), 56 S. E. 104. See § 533 herein. 105 Hays v. Citizens' Savings Bank, 101 Ky. 201, 40 S. W. 573, 19 Ky. L. Rep. 367, 14 Bkg. L. J. 327. 106 Mauney v. Coit, 80 N. C. 300, 30 Am. Rep. 80. JOYCE DEFENSES-44. 107 Ludington v. Thompson, 38 N. Y. Supp. 768, 4 App. Div. 117. 108 Valley National Bank v. Urich, 191 Pa. 556, 43 Atl. 354, 16 Bkg. L. J. 406. 109 Boutin, In re, Rap. Jud. Quebec, 12 C. S. 186. 110 Burke v. Ward (Tex. Civ. App.), 32 S. W. 1047. 111 Sloan v. Gibbes, 56 S. C. 480, 35 S. E. 408. States, bills of exchange, drawn in one state on another state, are, if dishonored, protested by a notary; and the production of such protest is the customary document of dishonor.112 The question, however, of evidence and the force and effect thereof in cases of notarial certificates of protest is regulated to a great extent by statutory provisions. A properly attested and valid certificate of protest affords presumptive or prima facie evidence of the facts stated therein,113 and this applies as well to an inland as to a foreign bill;114 but it is held to be only prima facie or presumptive evidence.115 The seal of a notary makes the certificate of protest at least presumptive evidence of the truth of the facts recited,116 and entitles it, so it is held, to full faith. and credit. A certificate is held to be presumptive evidence that presentment to a bank was made during banking hours where it contains a statement that the note was presented for payment on a certain day and that the bank was found closed.118 In Wisconsin such certificate is not only prima facie or presumptive evidence, but when properly made is sufficient proof of notice.119 Under a New York decision a notary's certificate, made in Pennsylvania, where such cer 112 Townsley v. Sumrall, 2 Pet. (U. gennes v. Cameron, 7 Barb. (N. Y.) S.) 170. 143. V. Ar 113 Arkansas.-Fletcher kansas National Bank, 62 Ark. 265, 35 S. W. 228. Georgia.-Patton v. Bank of Lafayette, 124 Ga. 965, 53 S. E. 664. Kentucky.-Mattingly v. Bank of Commerce, 21 Ky. 1029, 53 S. W. 1043. Maryland.-People's Bank V. Brooke, 31 Md. 7, 1 Am. Rep. 11. Massachusetts.-Legg v. Vinal, 165 Mass. 555, 48 N. E. 518. New York.-Bank of United States v. Davis, 2 Hill (N. Y.) 551; Bell v. Lent, 24 Wend. (N. Y.) 230; De Wolf v. Murray, 2 Sandf. (N. Y.) 166; Townsend v. Auld, 31 N. Y. Supp. 29, 63 N. Y. St. R. 418, 24 Civ. Proc. 181, 10 Misc. 343, rev'g 28 N. Y. Supp. 746, 59 N. Y. St. Rep. 274. See McAndrew v. Radway, 34 N. Y. 511; Union Bank v. Gregory, 46 Barb. (N. Y.) 98; Bank of Ver North Dakota.-Ashe v. Beasley, 6 N. Dak. 191, 69 N. W. 188. See Sims v. Hundley, 6 How. (U. S.) 1; McAfee v. Doremus, 5 How. (U. S.) 53; Brandon v. Loftus, 4 How. (U. S.) 127. 114 Ashe v. Beasley, 6 N. Dak. 191, 69 N. W. 188. 115 Mattingly v. Bank of Commerce, 21 Ky. 1029, 53 S. W.-1043; Meise v. Newman, 76 Hun (N. Y.) 341; Townsend v. Auld, 31 N. Y. Supp. 29, 24 Civ. Proc. 181, 63 N. Y. St. R. 418, 10 Misc. 343, rev'g 28 N. Y. Supp. 746, 59 N. Y. St. R. 274. 116 Second National Bank v. Smith, 118 Wis. 18, 94 N. W. 664. 117 Pierce v. Indseth, 106 U. S. 546, 1 Sup. Ct. 418. See Dickins v. Beal, 10 Pet. (U. S.) 572. 120 tificates are evidence, may be admitted in an action in the former state to prove non-payment and notice.1 In a Minnesota case the certificate is held to be competent to prove the statements therein, where it is admitted without objection except as to the signatures.121 Under a Mississippi decision the certificate evidences the fact of presentment and that it was made in the manner set forth therein.122 And in North Dakota it is held sufficient evidence of a like fact and also that demand was made.123 So the receipt of notice of protest is sufficiently evidenced, under a New York decision, by a certificate stating that it was mailed, there being no affidavit of denial of the fact.124 Again, in a federal supreme court case it is declared that a notarial protest is of itself sufficient proof of dishonor of a foreign bill.125 § 543. Same subject.-If the certificate of protest is exclusively relied on, it should sufficiently set forth the doing of every essential act.126 Under a Pennsylvania decision a certificate of protest is not conclusive evidence and has merely the force of a deposition.127 If the notary's testimony can be given, such certificate is held, in the absence of a statute, not to be even prima facie evidence of a statement therein that notice of dishonor was served, as the law merchant makes it no part of the notary's duty to give such notice.128 So it is also determined that the certificate of protest of an inland bill is not evidence of any fact stated therein.129 Where it does not appear from the certificate that notice of protest was given, it is not evidence of that fact, even though it contains a recital that protest was made.130 120 Persons v. Kruger, 60 N. Y. Supp. 1071, 45 App. Div. 187, 7 N. Y. Ann. Cas. 100. 121 Herrick v. Baldwin, 17 Minn. 209, 10 Am. Rep. 161. 122 Witkowski v. Maxwell, 69 Miss. 56, 10 So. 453. eign bills of exchange, the notarial certificate of protest is, of itself, sufficient proof of the dishonor of a bill, without any auxiliary evidence. 126 Berg v. Abbott, 83 Pa. St. 17, 24 Am. Rep. 158. See Mason v. Kil 123 Ashe v. Beasley, 6 N. Dak. 191, course, 71 N. J. 472, 59 Atl. 21. 69 N. W. 188. 124 McLean v. Ryan, 55 N. Y. Supp. 232, 36 App. Div. 281, aff'd 165 N. Y. 620, 59 N. E. 1126. See First National Bank v. Briggs, 70 Vt. 599, 41 Atl. 586, 16 Bkg. L. J. 40. 125 Townsley v. Sumrall, 2 Pet. (U. S.) 170, where it is declared that it is admitted, that in respect to for 127 "Farmers' National Bank V. Marshall, 9 Pa. Super. Ct. 621, 44 W. N. C. 68. 128 Schofield v. Palmer (U. S. C. C.) 134 Fed. 753. 129 Union Bank v. Hyde, 6 Wheat. (U. S.) 572; Young v. Bryan, 6 Wheat. (U. S.) 146. 150 Hobbs V. Chemical National A certificate may be attacked and impeached by proper and sufficient evidence contradicting a material fact recited therein.131 If the facts certified to are disputed by oral testimony, as in case of a recital that the bank where the presentment was made was closed, the question is one for the jury.132 Bank, 97 Ga. 524, 25 S. E. 348. See 131 Sulzbacher V. Charlestown Bank, 86 Tenn. 201, 6 S. W. 129, 6 Am. St. Rep. 828. In this case, however, the evidence was held insufficient. 132 Berg v. Abbott, 83 Pa. St. 177, 24 Am. Rep. 158. 546. Notice to all other parties- 559. To whom notice given-Where Necessary after non-accept- 547. To whom notice may be given. 549. By whom given. party dead. 560. Notice to partners. 561. Notice to persons jointly liable. 562. Notice to bankrupt. 563. Time within which notice must be given. 564. Same subject, continued-Diligence-Reasonable time. 550. Effect of notice given on be- 565. Same subject, continued half of holder or by party en- Where parties reside in same place. 551. When notice sufficient-Form 566. Same subject, continued of notice-Notice personally or by mail. Where parties reside in different places. 552. Form, contents and sufficiency 567. Time of notice - Subsequent of notice, continued. and antecedent parties. 553. Manner or mode-Oral, writ- 568. Same subject-Notice received § 544. To whom notice of dishonor must be given-Discharge of drawer or indorser.-Except as otherwise provided by statute, when a negotiable instrument has been dishonored by non-acceptance or non |