a fictitious person or a person not having capacity to contract by bill; 2. Where after the exercise of reasonable diligence, presentment cannot be made (b); 3. Where, although presentment has been irregular, acceptance has been refused on some other ground. (a) Prior to the statute there was some doubt as to the proper course in this case. See Daniel on Negotiable Instruments, section 1178. (b) As to what will constitute due diligence, see Sulsbacker v. Bank of Charleston, 86 Tenn. 201. § 246. When dishonored by non-acceptance.— A bill is dishonored by non-acceptance: I. When it is duly presented for acceptance, and such an acceptance as is prescribed by this act is refused or cannot be obtained; or 2. When presentment for acceptance is excused and the bill is not accepted. § 247. Duty of holder where bill not accepted.— Where a bill is duly presented for acceptance and is not accepted within the prescribed time, the person presenting it must treat the bill as dishonored by non-acceptance or he loses the right of recourse against the drawer and indorsers. § 248. Rights of holder where bill not accepted. When a bill is dishonored by non-acceptance, an immediate right of recourse against the drawers and indorsers accrues to the holder, and no presentment for payment is necessary (a). (a) Sterry v. Robinson, 1 Day (Conn.), 11. ARTICLE XIII. PROTEST OF Bills of Exchange. Section 260. In what cases protest necessary. 261. Protest; how made. 262. Protest; by whom made. 264. Protest; where made. 265. Protest both for non-acceptance and non-pay ment. 266. Protest before maturity where acceptor insol vent. 267. When protest dispensed with. 268. Protest; where bill is lost, et cetera. Where a foreign § 260. In what cases protest necessary. bill appearing on its face to be such is dishonored by nonacceptance, it must be duly protested for non-acceptance, and where such a bill which has not previously been dishonored by non-acceptance is dishonored by non-payment, it must be duly protested for non-payment. If it is not so protested, the drawer and indorsers are discharged (a). Where a bill does not appear on its face to be a foreign bill, protest thereof in case of dishonor is unnecessary (b). (a) Commercial Bank v. Varnum, 49 N. Y. 269, 275; Halliday v. McDougall, 20 Wend. 81; Dennistoun v Stewart, 17 How. (U S.) 606; Phoenix Bank v. Hussey, 12 Pick. 483. Protest is indispensable, and the proof cannot be supplied in any other way. Joseph v. Solomon, 19 Fla. 623. There are several reasons why protest is required in such cases: (1) for the sake of uniformity in international transactions; (2) because it affords satisfactory evidence of dishonor to the drawer, who, from his residence abroad, might experience a difficulty in making inquiries on the subject. and be compelled to rely on the representations of the holder; (3) because, as foreign courts give credit to the acts of a public functionary, the protest affords the most satisfactory evidence to charge an antecedent party. Byles, 256. (b) See sections 189 and 213. § 261. Protest; how made.-The protest must be annexed to the bill, or must contain a copy thereof (a), and must be under the hand (b) and seal (c) of the notary making it, and must specify: 1. The time (d) and place (e) of presentment; 2. The fact that presentment was made and the manner thereof; 3. The cause or reason for protesting the bill; 4. The demand made and the answer given, if any, or the fact that the drawee or acceptor could not be found (f). (a) Fulton v. MacCracken, 18 Md. 528. (b) The signature of the notary may be printed. Bank of Cooperstown v. Woods, 28 N. Y. 561; Fulton v. MacCracken, 18 Md 528. (c) Donegan v. Wood, 49 Ala. 251 In other cases it has been held that the official signature is all that is required. Huffuker v. National Bank, 12 Bush. 293. When the court can perceive that a seal is attached thereto the protest is sufficiently authenticated; neither the seal nor the signature of the notary need be proved. Barry v. Crowly, 4 Gill (Md.) 194. (d) In the case of a note, the statement in a notarial certificate that it was presented on a certain day is not conclusive upon the parties, but evidence is admissible to show that presentment was also made on another day. Reynolds v. Appleman, 41 Md. 615. (e) A certificate of a notary which states that he presented a note for payment at a certain town and demanded payment, which was refused, but did not state to whom or at what place in the town it was presented, does not show such a presentation to the maker as will bind the indorser. Duckert v. Von Lilienthal, 11 Wis. 56. (f) The notarial certificate of protest is competent, without further proof. This has often been so held in respect to foreign bills. Porter v. Judson, 1 Gray, 175; Pierce v. Indseth, 106 U. S. 546, Browne v. Philadelphia Bank, 6 S. & R. 484; Coruth v. Walker, 8 Wis. 252. For this purpose the different States of the Union are deemed foreign to each other, so that the notarial certificate of protest under seal is good on mere production. Townsley v. Sumrall, 2 Pet. 170; Halliday v. McDougall, 20 Wend. 81; Carter v. Burley, 9 N. H. 558, 566; Johnson v. Brown, 154 Mass. 105, 106. The statement in the certificate that notice of dishonor has been given is also received as evidence. Barry v. Crowly, 4 Gill (Md.) 194; Rosson v. Carroll, 90 Tenn. 90; Legg v. Vinal, 165 Mass, 555. But the notary's certificate is not evidence of other collateral or independent facts it may contain, especially when such facts are not necessarily within the personal knowledge of the notary, or are of such a character as could not be established by his testimony if he were produced as a witness. Weems v. Farmers' Bank, 15 Md. 231. Thus, the statement that the party on whom the demand was made was 66 one of the administrators" of the acceptor, does not establish the facts of the death of the acceptor, and of the granting of letters of administration on his estate to such party. (Id.) So the words "after diligent search and inquiry to ascertain his whereabouts" are not admissible as evidence of such "diligent search and inquiry" having been made; for this is a conclusion of law which the notary could not legally draw or establish by his own testimony. Reier v. Strauss, 54 Md. 278. See also Ricketts v. Pendleton, 14 Md. 320; Duckert v. Von Lilienthal, 11 Wis. 56; Sumner v. Bowen, 2 Wis. 524; Adams v. Wright, 14 Wis. 408. A notarial certificate of protest is evidence of the facts therein set forth, although the notary, when examined, has no recollection of them. Rosson v. Carroll, 90 Tenn. 90; Sherer v. Easton Bank, 33 Pa. St. 134. And the entries of a deceased notary in his register are admissible. Spann v. Baltzell, 1 Fla. 301; Porter v. Judson, 1 Gray, 175. When a notary has neglected to keep a record of the notice which he has served on the non-payment of a note, his oral testimony is admissible to prove its contents. Terbell v. Jones, 15 Wis. 253. Where the protest is exclusively relied upon to prove the necessary facts to fix liability upon the parties to be affected, it must contain sufficient averments to show that everything requisite has been done on the part of the holder, or his agent, to authorize the demand upon the indorser. People's Bank v. Brooke, 31 Md. 7. For a case where the protest was insufficient see Mason v. Kilcourse, 71 N. J. Law, 472, 473–474. § 262. Protest; by whom made.- Protest may be made by: 1. A notary public (a); or 2. By any respectable resident of the place where the bill is dishonored, in the presence of two or more credible witnesses (b). (a) It would seem that, in the absence of any custom or usage on the subject, the presentment and demand must be made by the notary in person. Commercial Bank v. Varnum, 49 N. Y. 269, 275; Ocean Nat. Bank v. Williams, 102 Mass. 141. A notary who is an officer of a bank may legally protest paper belonging to the bank. Nelson v. First National Bank, 69 Fed. Rep. 798; 29 U. S. App. 554. And though he is also a stockholder in the bank. Moreland's Assignee v. Citizens' Savings Bank, 97 Ky. 211. And it has been held that the cashier of a bank who is a notary may legally protest his own note which has been discounted by the bank. Dykman v. Northridge, 1 App. Div. (N. Y.) 26. (b) Todd v. Neal's Administrator, 49 Ala. 273. § 263. Protest; when to be made. 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 extended as of the date of the noting (a). (a) The protest should be commenced, at least (and such an incipient protest is called noting), on the day on which acceptance or payment is refused; but it may be drawn up and completed at any time before the commencement of the suit, or even before or during the trial, and ante-dated accordingly. Byles on Bills, 257. § 264. Protest; where made.- A bill must be protested at the place where it is dishonored (a), except that when a bill drawn payable at the place of business or residence of some person other than the drawee, has been dishonored by non-acceptance, it must be protested for non-payment at the |