certificate. The authorities on this subject are collated in an article. on "Presentment for Payment," in the Southern Law Review for April of the present year.

Noting the Dishonor.

§ 13. As soon as the presentment and demand have been made, or at some seasonable hour during the same day, the Notary makes a minute on the bill, or in his book of registry, consisting of his initials, the month, the day, the year, the refusal of acceptance or payment, and his charges of protest. This is the preliminary step towards the protest which may be afterwards written out in full, extended as the elaboration of these minutes is termed, and it is called noting. "Noting" it was said in an early case, "is unknown to the law, as distinguished from the protest; it is merely a preliminary step to the protest, and has grown into practice within these few years." But it is now quite well established in England, Scotland and the United States, that the noting is a kind of "initial protest," as Thompson aptly terms it, not self-sufficient as a protest, but sufficient in the meantime, if the certificate of protest is regularly extended afterwards. It must be made on the very day of dishonor by non-acceptance or non-payment, otherwise it can not be made the basis of the extended protest. For the Notary will not be permitted to trust to his memory for the requisite particulars. It is to his cotemporaneous written statement that the law gives credit. Where, in Scotland, the original protest could not be used, because not properly stamped, it was allowed to be used as a note for extending a valid protest, and it seems unimportant in what particular form the noting is done.

Extending the Protest.

§14. The extension of the protest is the completion of the instrument of protest, from the minutes or "initial protest" as they are called, noted on down the day of dishonor. This extension may be made at any time. As said by Lord Kenyon: "If the bill was regularly presented, and noted at the time, the protest might be made at any future period," and it is well settled to this effect in the 1Leftly us. Mills, 4 T. R., 170, Buller, J.

2 Chaters vs. Bell, 4 Esp., 48; Geralopulo vs. Wieler, 10 C. B., 690; 3 Eng. L. & Eq., 515; Edwards on Bills, 581; Thomson on Bills, (Wilson's ed.) 311; Story on Bills, (Bennett's ed.) 27, 6 note.

* Butler N. P., 373; Thomson on Bills, (Wilson's ed.) 315.

Chaters vs. Bell, 4 Esp., 48; (1801); Geralopula vs. Wieler, 10 C. B., 690; 3 Eng. L. & Eq., 515; Robins vs. Gibson, 1 Maule, & S., 288.

VOL. II-NO. III-5

United States.1

The extension may be made even after suit brought, or after trial has commenced, and when made,3 it is antedated as of the day when the initial protest was made

In Scotland the extension of a protest was permitted fifteen years after noting.

In Cases of Payment supra Protest.

§ 15. It has been contended that in the case of payment for honor, which must be made supra protest, the formal extension of the protest must be made before the payment, on the ground that unless this were done, the allegation that the bill was continued and paid under protest, would not be proved, inasmuch as the protest should be understood to mean such protest as would give a right of action to the person paying for honor. But this distinction is not recognized. It is true that the declaration that the payment was made for honor, must precede the protest; and that the noting of such declaration, and of the dishonor, must be then made; and that unless the declaration were then made, no after act could give to the payment the character of payment supra protest. But the protest in this, as in other cases, may be extended at any time, provided it was duly noted."

16. When there is a protest for non-acceptance, and subsequently a protest for non-payment, it is not sufficient to simply note the bill for non--acceptance, and extend only the protest for non-payment, but wherever proof of protest is requisite the extended protest alone will suffice."

Copy of Protest, and of Instrument Protested.

§ 17. If the drawer reside abroad, it has been said that a copy, or some memorial of the protest, should accompany the notice of dishonor. But is now well settled, that it is only necessary for the drawer or indorser, to receive a notice of the protest, without any copy or memorial of the instrument itself, in order to fix his liabil ity, the protest not being necessary until the trial."

Bailey vs. Dozier, 6 Howard, 23; Bank of Decatur us. Hodges, 9 Ala., 631; Cayuga Co. Bank vs. Hunt, 2 Hill, 635.

* Dennistown vs. Stewart, 19 Howard, 606; Brook's Notary, 97.

3 Orr vs. Maginnis, 7 East, 361; Byles, (Sharswood's ed.) 396. Alexander vs. Scott, Thomson on Bills, 312.

5 Vanderwall 18. Tyrrell, 1 Mood & Malk, 87.

Geralopulo vs. Wieler, 10 C. B., 690; 3 Eng., L. & Eq., 515.

7 Rogers vs. Stephens, 2 T. R., 713; Orr vs. Maginnis, 7 East, 359. Byles, (Sharswood's ed.) 399.

Goodman vs. Harvey, 4 Ad. & El., 870; (31 E. C. L. R.,) Robins rs. Gibson. 1 Maule & S., 288; Cromwell vs. Hynson, 2 Esp., 511; Dennistown 8. Stewart, 17 Howard, 606; Lenox vs. Leverett, 10 Mass., 1; Wells vs. Whitehead, 15 Wend.. 527; Wallace vs. Agry, 4 Mason, 336; Chitty on Bills, (13 Am. ed.) top p. 375, 344.

§ 18. It is usual, and highly important, to prefix a copy of the bill or note with all indorsements therein, verbatim et liberatim, to the instrument of protest, for the purpose of identifying the bill or note with certainty, and indicating to the drawer or indorsers, what party is entitled to payment.'

How the Protest is Authenticated or Proved.

$ 19. The official seal of a Notary attached to the certificate of protest is everywhere received as a sufficient prima facie proof of its authenticity. The courts take judicial notice of the seal, and it proves itself by its appearance upon the certificate.2 But it may be controverted as false, fictitious, or improperly annexed.3

§ 20. It is not essential to the admissability in evidence of the certificate of protest that it should be under the notary's seal; nor is it essential in all cases as already seen, that it should be made by the notary in person; but in either of these cases it does not prove itself, and there must be extraneous evidence to show that it was duly made by the person officiating, and is sufficient without a seal according to the laws of the country where it was made.1

§ 21. An impression of the notarial seal on the paper of the protest is prima facie sufficient, and it will be presumed to have been affixed according to the laws of the country where the dishonor occurred until there is something to impeach it." But it seems that a mere scrawl would not be."

§ 22. It is well settled that where the laws of the State in which the protest is made, require that it shall be made under the notary's seal, it will not be received in evidence in another State without such seal, and, no other mode of authentication is available."

§ 23. The protest should be signed by the notary; but if his act, in fact, it may be signed by his clerk in his name, or may be in printing, it being requisite only that it should be by his authority."

1 Story on Bills. 276, Chitty (13 Am. ed.) *458, top p. 517.

2 Nichols us. Webb, 8 Wheat, 326; Tonnsley vs. Sumerall, 2 Peters, 170; Dickens es. Beal, 10 Peters, 582; Mullen vs. Morris, 2 Barr, 86; Nelson vs. Fotterall, 7 Leigh, 180; Carter vs. Burley, 9 N. H., 558, Bryden vs. Taylor, 2 Har. & J., 399.

*Carter 8. Burley, 9 N. H., 558; Chanoine vs. Fowler, 3 Wendell, 173. 5 Carter vs. Burley, 9 N. H., 558; chester vs. S ason, 13 Vt., 334.

Conolly vs. Goodwin, 5 Calif., 220; Bank of Man

Carter vs. Burley, 9 N. H., 558.

Ticknor vs. Roberts, 11 La., 14; Bank of Rochester vs. Gray, 2 Hill. (N. Y), 227; Wharton's Conflict of Laws, ?699, a.

8 Fulton vs. Maccracken, 18 Md., 528.

SECTION IV.

CONTENTS OF PROTEST.

§ 24. The protest, or more strictly speaking, the notarial certifi cate thereof, should set forth: (1) The time of presentment; (2) the place of presentment; (3) the fact and manner of presentment; (4) the demand of payment; (5) the fact of dishonor; (6) the name of the party to whom presentment was made; and (7) the name of the person to whom presentment was made. And in respect to notice, it should state: (1) The person notified; (2) the manner of notification; and (3) when not served on the party in person, it should specify distinctly, whether it was delivered at his house or place of business; or, if sent by mail, that it was addressed to the post-office nearest to him, or at which he usually received his business letters. These, at least, are the elements of a regular and perfect protest. The admissibility of the protest as evidence of notice, and its statements in reference to notice, will be considered under a separate head.

$25. As to the time, it is essential that the time of presentment and demand should be stated, for otherwise it can not appear from the certificate that the bill was duly dishonored. And if it state that the bill was "this day protested" and is dated on a day previous to, or after the day of maturity, it is invalid upon its face.1

It is better to state that the presentment and demand were made during the usual hours of business, but where the hour of the day is not stated, it will be presumed that they were made at the proper time of day.2

§ 26. As to the place-if the bill is not payable at a particular place, it is not absolutely necessary to state at what place the presentment and demand were made, but if it were payable at a bank, or other specified place, the certificate is insufficient unless it state presentment and demand at such place.3

§ 27. As to the manner and fact of presentment and demand, the presentment of the bill, and the demand of payment, should be separately stated. The usual expression of the certificate is, that the Notary "did exhibit said bill," and it is certain that there must be some expression importing ex vi termini that the bill

1 Walmsley vs. Acton, 44 Barbour, 312.

2 Burbank 18. Beach, 15 Barbour, 326; DeWolf vs. Murray, 2 Sandford, 166; Cayuga County Bank vs. Hunt, 2 Hill, 227. People's Bank vs. Brooke, 31 Md., 7.

3

1

was presented to the drawee or acceptor. The mere statement that payment was "demanded" has been held by the United States Supreme Court to be insufficient in itself, because not necessarily implying a "presentment also." But there can be no legal demand without presentment, and the term "demanded" has been considered sufficient in Louisiana.3 The mere statement of "presentment" is not in itself sufficient without also a statement of demand.1

§ 28. As to the fact of dishonor, the dishonor of the bill must be stated, and it is usually expressed in the phrase that the person to whom it was presented "answered that it would not be accepted, or paid," or that such person "refused to accept or pay it,”—or some such language. If it does not, in some terms, inform the party of the dishonor, it is fatally defective. But it is not material what words are used. If it states that the reason of protest was its nonpayment, it is sufficient."

§ 29. As to the name of the person upon whom demand was made, it should be stated, especially when it was not made at the place of business of the drawer or acceptor. In the latter case, it is sufficient to describe the person as a clerk, or person in charge. If a firm were drawer or acceptor it would be fatally defective in not stating the name of the person on whom demand was made, as well as that he was a member of the firm.8

If the bill is payable at a bank, nothing more need be stated than that the Notary presented it, and demanded payment at the bank, and that it was refused, without stating the name of the person or officer of the bank to whom it was presented."

$30. The certificate frequently states the name of the party who requests the protest to be made, and who looks to the drawer or indorser for payment, but this is not necessary.10

§ 31. It is said to be important that the reasons given by the drawee for non-acceptance, or non-payment, should be stated in the

1Union Bank vs. Fowlkes, 2 Sneed, 555; Bank of Vergennes vs. Cameron, 7 Barbour, 143.

2 Musson 18. Lake, 4 Howard, 262; Woodbury and McLean, JJ., dissenting on this point. Nott is. Beard, 16 La., 308.

* Nave . Richardson, 36 Mo., 130; Farmer's Bank vs. Allen, 18 Md., 475.

5 Taylor es. Bank of Illinois, 7 Monroe, 576; Arnold vs. Kinloch, 50 Barbour, (N. Y.) 44; Littledale vs. Maberry, 43 Maine, 264.

Young rs. Bennett, 7 Bush, (Ky.) 477.

Nelson rs. Fotterall, 7 Leigh, 179; Sainback vs. Bank of Virginia, 11 Grat., 260 See Post. Otsego Co. Bank vs. Warren, 18 Barbour, 290.

"Hildeburns. Turner, 6 Howard, 69.

10 Duckert vs. Van Lilienthal, 11 Wisc., 56.