between the note and a bill. But as soon as a promissory note is indorsed it becomes closely assimilated to a bill, the maker being primarily liable like the acceptor, and the indorser secondarily like the drawer. It is often said that every indorser is a new drawer, and in fact the indorser's obligation is precisely like that of the drawer on an accepted bill. Therefore when an indorsed note is payable in a State or country different from the one where it is drawn,—perhaps more especially when the indorser is not of the State or country where it is payable, tho' no distinguishing difference, it seems to us, exists, every reason which would make a protest competent and necessary evidence of presentment, and notice in case of a foreign bill, would recognize it as equally competent in respect to the indorser of the note. It has been well said that "the similarity be tween the indorsement of notes, and the drawing and indorsement of bills of exchange is so great, that there can be no sound reason given for establishing or preserving a distinction between them, and requiring a different character of evidence to prove the same facts with regard to two instruments, which, tho' different in some respects as to their phraseology, are so essentially similar in their nature and operations." And there are well considered cases sustaining it. This view has been taken in Kentucky respecting an indorsed certificate of deposit."

There are cases in which the converse view has been taken, it being considered that the certificate of protest of a promissory note, is a document unknown to the law; and altho' the note be payable on a foreign place, is inadmissible. But rules of evidence should not be so extremely and unreasonably technical. Every consideration of convenience and certainty which prevails in respect to foreign bills, applies with the same exact force to foreign indorsed notes, and should produce the sanie result. A general usage would probably be controlling."

§ 4. As to the meaning of protest, it includes, in a popular sense, all the steps taken to fix the liability of a drawer or indorser, upon the dishonor of commercial paper to which he is a party. More accurately speaking, it is the solemn declaration on the part of the holder against any loss to be sustained by him by reason of the non

1 Parker, C. J., Williams es. Putnam, 14 N. H., 540; Carter vs. Burley, 9 N H 558; Smith vs. Little, 10 N. H., 526.

2 Ticonic Bank vs. Stackpole, 41 Maine, 302, held admissible at common law. 3 Piner vs. Clary, 17 B. Monroe, 645.

4 Kirtland vs. Wanzer, 2 Duer, 278.

5 See Burke is. McKay, 2 Howard, 66.

6 Townsend vs. Lorain Bank, 2 Ohio St., 345; Coddington es. Davis, 1 Comstock, 186.

acceptance, or even non-payment, as the case may be, of the bill in question; and a calling of the Notary to witness that due steps having ing been taken to prevent it. The word "Protest" signifies to testify before; and the testimony before the Notary that proper steps were taken to fix the drawer's liability is the substance, and the certificate of the Notary the formal evidence, to which the term protest is legally applicable.

In what cases Necessary.

§ 5. According to the English law, the protest must be made in the case of dishonor by non-acceptance, as well as dishonor by nonpayment. And the same rule prevails in the United States, although it was decided by the Supreme Court of the United States, in an action on a protest for non-payment of a foreign bill, that a protest for, or notice of, non-acceptance, need not be shown, inasmuch as they were not required by the custom of merchants in this country. But the English rule has been deemed the most consistent with commercial policy, by the highest authorities, and Story and Kent adopt it as the true one; the former observing that the decisions of the Supreme Court, if they would now be held law by that court, would be so held only upon the ground of the local law of Pennsylvania (to which State the decisions appertained), as to bills drawn or payable there.*

§ 6. There is no difference in respect to the necessity for protest, whether the bill be payable at a certain time after date or after sight, for, although it is not necessary to present a bill payable at a certain time after date until its maturity, yet if such a bill be presented for acceptance, and dishonored, it is necessary to make protest and give notice, in order to charge drawer or indorsers." But if a bill has been protested for non-acceptance, and its dishonor duly notified, it is not necessary to present it again for payment, and protest it separately for non-payment, or to give separate notice of non-payments.

1 Walker 13. Turner, 2 Grat., 536; Chitty, (13 Am. ed.)*458, top p. 516. Thompson vs. Cumming, 2 Leigh, 321; Mason vs. Franklin, 3 Johns, 202; Watson ts. Loring, 3 Mass., 557; Phillips vs. McCurdy, 1 Har. & J., 187; Sterry vs. Robinson, 1 Day, 11; Winthrop vs. Pepoon, 1 Bay, 468.

'Brown ts. Barry, 3 Dallas, 365; Clarke vs. Russell, 3 Dallas, 295, followed in Pennsylvania; Read 28. Adams, 6 Sergt. & R, 358.

+3 Kent Com., 95; Story on Bills, ? 273, note; Edwards on Bills, 448; Chitty on Bills, (13 Am. ed.) 372, *332.

5 Bank of Washington vs. Triplett, 1 Peters, 25; U. S. vs. Barker, 4 Wash., C. C. 464; O'Keefe vs. Dunn, 6 Taunt, 305; S. C. 5 Maule & Sel., 282.

De la Torre vs. Barclay, 1 Stark. Part 2, 7; Thompson on Bills (Wilson's ed.) 308.

Notarial Charges.

§ 7. It is estimated by high authority that notarial charges are not a legal charge except where the protest is required by the law merchant, although it is certainly usual to pay them where they are reasonable, and made in good faith, and in conformity with usage. It being an entirely unnecessary act to protest an inland bill or note in order to charge any party thereto, and purely voluntary and for his own convenience on the part of the holder, there is obvious force in this suggestion. But it is doubtless in almost every case the cheapest, easiest and safest way of proving notice. The defendant would be chargeable with costs of other testimony more cumbrous and more expensive, where liable, and custom has so extensively sanctioned the practice, that we anticipate the courts will be slow to hold that it is not a legitimate charge.

SECTION II.

BY WHOM, AND WHERE PROTEST SHOULD BE MADE.
By Whom the Protest Should be Made.

§ 8. As to the person by whom the protest should be made, it is necessary, as a general rule, that it should be made by a Notary Public in person. The Notary is a public officer, commissioned by the State, and possessing an official seal, and full faith and credit are given to his official acts, in foreign countries as well as in his own. But when no Notary can be conveniently found, the protest may be made by any respectable private person of the place where the bill is dishonored."

4

In England it is required by statute that in case of inland bills, the protest by a private person shall be made in the presence of two or more credible witnesses. And it has been said that when a private person protests a bill it should be done in the presence of two witnesses. Certainly it is sufficient if it be so made, but it does not appear be necessary to require witnesses to the protest of a foreign bill by a private person.'

5

11 Parsons N. and B., 646.

2 See Southern Law Review for April, 1873, article "Presentment for Payment."

3 Burke vs. McKay, 2 Howard, 66; Read vs. Bank of Kentucky, 1 T. B. Monroe, 91. +9 and 10 William III, ch. 17.

5

Bayley on Bills, 258, (5th ed.) No authority is refered to and "Quære if not confined to inland bills," say the editors of Chitty, see infra

6 Story on Bills ? 276.

p. 395.

1 Parsons N. and B., 633. Byles (Sharswoods Ed.) top

7 Brooks Notary p. 103. Chitty on Bills, (13th Am. ed.) top p. 374, 333, note &

Where the Protest Should be Made.

§ 9. As to the place of protest it is usually made at the place where the dishonor occurs.1 When the protest is for non-acceptance, the place of protest should be the place where the bill is presented for acceptance.2 But when the bill is drawn upon the drawees in one place, and is payable in another, the question has arisen, whether the protest should be at the place of acceptance, or place of payment. Mr. Chitty says in respect to protest for non-acceptance that "if a bill be drawn abroad directed to the drawee at Southampton or any other place requesting him to pay the bill in London, the protest for non-acceptance, may be made either at Southampton or in London.3 But as the presentment for acceptance must be at the former place, it would be better to make the protest for non-acceptance there also. It has been held that it is sufficient if the protest for non-payment where there has been a refusal to accept, be made at the place of the drawee's residence; and in England it being conceived that the decision cast

1Byles (Sharswoods ed.), top p. 396. 2 Story on Bills, ? 282.

3 Chitty on Bills, (13 Am ed.) *334, top p. 374. 'Thompson on Bills, 308 Marnus 107,-8.

Mitchell vs. Baring, 4 Car. and p. 35; 10 Barn. and C. 8, (19 E. C. L. R., 261) The Code of Virginia, chapter 144, ? 2, provides as follows: "If a bill of exchange wherein the drawer shail have expressed that it is to be payable in any place other that by him mentioned therein to be the residence of the drawee, shall not, on the presentment thereof for acceptance, be accepted, such bill may, without further presentment to the drawee, be protested for non-payment in the place in which it shall have been, by the drawer expressed to be payable, unless the amount thereof be paid to the holder on the day on which the bill would have become payable, had it been duly accepted." This section was first incorporated in the Code of 1849, upon recommendation of the revisors, who said in their report to the General Assembly: "It is a general rule of law that the protest for non-payment is to be at the place where the drawee resides. In Mitchell &c. vs. Baring, &c., 4 Car. and Payne 35, 19 Eng. Com. Law Rep., 261, 10 Barn. and Cress. 4, 21 Eng. Com. Law Rep. 12, the drawer of a bill made in America, had expressed that it was to be payable in London, yet Liverpool, was mentioned therein as the residence of the drawee; on the presentment thereof for acceptance, it was not accepted, and the protest for non-payment was at Liverpool. Under particular circumstances appearing in the case, this protest was held sufficient, the general question whether, if the acceptance had been in the usual form, a protest in London would have been sufficient, was left undecided. It appeared from the evidence of several witnesses, some of them Notaries, and others merchants, that where a foreign bill, drawn upon a merchant residing at Liverpool, payable in London, was refused acceptance by the drawee, the usage was to protest it for non-payment in London. Yet, though this was the usage, the doubt arose after the decision in Mitchell, &c., vs. Baring, &c., whether such usage would be sustained by the Courts, and the statute of 2 and 3 Will. Iv, ch. 98, was passed to remove the doubt. We propose, it will be perceived, to adopt the same statute in Virginia." Report of Revisors, p. 719.

a doubt upon the legality of making protest at the place specified for payment, the statute 2 and 3 William Iv c. 98, was enacted declaring that a protest at the place of payment, in case of a refusal to accept, without further presentment to the drawee, should be sufficient. It is conceived that this statute was merely declaratory of the common law. Where there has been an acceptance by the drawee in one place, to pay in another, the latter would seem to be clearly the place for the protest to be made at.'

§ 10. As to the law controlling the protest, it should be made according to the law of the place of presentment for acceptance if it be for non-acceptance, or of the law of the place where the bill is payable, if it be for non-payment; in other words, according to the law of the place where the dishonor occurs.2

SECTION III.

FORMAL MAKING, PREPARATION AND AUTHENTICATION OF PROTEST.

§ 11. As to the formality of making protest, and preparing the certificate thereof, it generally comprises three distinct steps: 1. Making the presentment, and demand of payment. 2. Noting the dishonor, and 3, extending the protest.

The Presentment and Demand of Payment.

§ 12. The first step taken is the presentment of the instrument to the drawee, or acceptor or maker, by the Notary, and a demand of payment. By the law merchant it is absolutely necessary that the Notary himself should make this formal presentment and demand. And, although the holder may have already presented the bill and demanded acceptance or payment, and been refused, it is still necessary that the presentment and demand which are to be made the basis of the Notary's certificate should be made by him in person. For otherwise his testimony contained in the protest would be hearsay, and secondary; and would lack the very element of certainty which the protest is especially designed to assure. Not even his clerk, nor, unless authorized by law, his deputy, can perform these functions for the Notary, as it is to his official character that the law imputes the solemnity and sanction which are accorded his

1 Story on Bills, 284, Thompson (Wilson's ed.) 309.

2 Shanklin vs. Cooper, 8 Blackford, 41; Turner Rogers, 8 Ind., 139; Carter rs. Union Bank, 7 Hum., 48; Onendaga County Bank vs. Bates, 3 Hill, 53; Rotschild vs. Currie, 1 Q. B. 43.