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.

22

930. Protest for nonacceptance. According to the English law, the protest must be made in the case of dishonor by nonacceptance as well as dishonor by nonpayment. And the same rule prevails in the United States,21 although it was decided by the Supreme Court of the United States, in an action on a protest for nonpayment of a foreign bill, that a protest for, or notice of, nonacceptance, 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.23

§ 931. As to what constitutes a refusal to honor a bill, which will authorize or require a protest, a distinction exists between the dishonor for nonacceptance and dishonor for nonpayment. If the drawee accepts the bill, he is bound to provide for its payment at maturity; and if the holder present it at his home or place of business at maturity, and finds that he has absented himself, and left no one with funds to meet it, such conduct is in itself a refusal to pay, and the bill may be at once protested (and, if foreign, must be), and notice given. But absence from home or place of business, without leaving any one to accept a bill, is not a refusal to accept, for the drawee may not be aware that the

20. Gale v. Walsh, 5 T. R. 239; Benjamin's Chalmers' Digest, 176; 2 Ames on Bills and Notes, 114.

21. Thompson v. Cumming, 2 Leigh, 321; Mason v. Franklin, 3 Johns. 202; Watson v. Loring, 3 Mass. 557; Phillips v. McCurdy, 1 Harr. & J. 187; Sterry v. Robinson, 1 Day, 11; Winthrop v. Pepoon, 1 Bay, 468; Allen v. Merchants' Bank, 22 Wend. 215; Story on Bills, § 273; Edwards on Bills, 444; 2 Ames on Bills and Notes, 114.

22. Brown v. Barry, 3 Dall. 365; Clarke v. Russell, 3 Dall. 295, followed in Pennsylvania, in Read v. Adams, 6 Serg. & R. 358.

23. Kent Comm. 95; Story on Bills, § 273, note; Edwards on Bills, 448; Chitty on Bills (13th Am. ed.) [*332], 372.

bill is drawn, and is not bound (in the absence of a promise to accept) to be prepared for its presentment.

24

§ 932. 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.25 If a bill has been protested for nonacceptance, and its dishonor duly notified, it is not necessary to present it again for payment, and protest it separately for nonpayment, or to give separate notice of nonpayment.26 But there may be a subsequent protest for nonpayment at maturity.27

§ 933. Notarial charges. It is considered 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.28 It being an entirely unnecessary act to protest an inland bill or a note in order to charge the drawer or an indorser, 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, in cases where there is a drawer or indorser to charge by notice.29 But where there is no drawer or indorser to charge, the protest would

24. Bank of Washington v. Triplett, 1 Pet. 35. See ante, § 589, vol. 1. 25. Bank of Washington v. Triplett, 1 Pet. 25; United States v. Barker, 4 Wash. C. C. 464; O'Keefe v. Dunn, 6 Taunt. 305, 5 Maule & S. 282; Story on Bills, § 273.

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

27. Campbell v. French, 6 T. R. 200; Chitty, Jr., on Bills, 541.

28. 1 Parsons on Notes and Bills, 646; Johnson v. Bank of Fulton, 29 Ga. 260; Legg v. Vinal, 165 Mass. 555, 43 N. E. 518, citing text in regard to notarial charges allowed in above case under Stat. 1880, chap. 4; Pub. Stats. 77, § 22.

29. Merritt v. Benton, 10 Wend. 117.

be useless, and notarial fees could not be recovered,30 unless, indeed, the protest were authorized by statute, in which case a different rule might perhaps be applicable.

SECTION II.

BY WHOM AND WHERE PROTEST SHOULD BE MADE.

§ 934. By whom the protest should be made. 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,31 and by the same notary who presented and noted the bill.32 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 his own.33

934a. 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.34

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.35 And it has been said that when a private person protests a bill, it should be done in the presence of two witnesses.36 Certainly it is sufficient if it be so

30. German v. Ritchie, 9 Kan. 110; Noyes v. White, 9 Kan. 640; Cramer v. Eagle Mfg. Co.. 23 Kan. 400. An agreement between a bank and a notary public whereby it is agreed between them that in consideration of the notary's employment he will accept in full payment for his services in protesting the bank's negotiable paper, one-half the usual and legal fees charged for such work, is void for want of consideration and also upon the ground that it is against public policy. Ohio Nat. Bank v. Hopkins, 8 App. D. C. 146.

31. Cribbs v. Adams, 13 Gray, 597; Ocean Nat. Bank v. Williams, 102 Mass. 141; ante, §§ 579, 587; Sacriber v. Brown, 3 McLean, 481.

32. Commercial Bank v. Varnum, 49 N. Y. 269; Commercial Bank v. Barksdale, 36 Mo. 563; 2 Ames on Bills and Notes, 450, 863.

33. See chapter XX, on Presentment for Payment, section I, vol. I, §§ 579, 587. And accordingly it has been held that as a general rule a bank is not responsible for a malicious protest made and published by a notary public employed by it such notarial acts being that of a public officer. See May v. Jones, 88 Ga. 308, 14 S. E. 552, 30 Am. St. Rep. 154, note.

34. Burke v. McKay, 2 How. 66; Read v. Bank of Kentucky, 1 T. B. Mon. 91. 35. 9 & 10 William III, chap. 17.

36. Bayley on Bills (5th ed.), 258. No authority is referred to; and “Quære, if not confined to inland bills," say the editors of Chitty. Chitty on Bills [*333], 374, note u. In Todd v. Neal's Admr., 49 Ala. 273, it is said by

made,37 but it does not appear to be necessary to require witnesses to the protest of a foreign bill by a private person.38 The notary to whom the bill or note is given for protest is bound to follow the instructions given him, and it is not his duty to determine whether or not it should be protested on a certain day. If he follows instructions he is not liable to any person for any irregularity in its course.

39

41

935. Where the protest should be made. As to the place of protest it is usually made at the place where the dishonor occurs." When the protest is for nonacceptance, the place of protest should be the place where the bill is presented for acceptance. 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 nonpayment, 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 nonacceptance may be made either at Southampton or in London." 42 But as the presentment for acceptance must be at the former place, it would be better to make the protest for nonacceptance there also.43 It has been held that it is sufficient if the protest for nonpayment, where there has been a refusal to accept, be made at the place of the drawee's residence; and in

44

Peters, J.: "If there be no legal notary there, on demand and refusal of payment, it is sufficient if the protest be made out and drawn up by a respectable inhabitant of the place where the bill is payable, in the presence of two witnesses."

37. Story on Bills, § 276; 1 Parsons on Notes and Bills, 633; Byles on Bills (Sharswood's ed.) [*249], 395.

38. Brooks' Notary, 103; Chitty on Bills (13th Am. ed.) [*333], 374, note u. 39. Commercial Bank v. Varnum, 7 Hun, 236, 49 N. Y. 269.

40. Chitty on Bills (13th Am. ed.) [*170], [*456]; Benjamin's Chalmers' Digest, 175; 2 Ames on Bills and Notes, 450; Edwards on Bills, 580; Bigelow on Bills, 275; Byles on Bills (Sharswood's ed.) [*250], 396. See post, § 936. 41. Story on Bills, § 282.

42. Chitty on Bills (13th Am. ed.) [*334], 374. 43. Thompson on Bills, 308; Mar. 107, 108.

Eng. C. L. 261). "If a bill of exto be payable in

44. Mitchell v. Baring, 4 Car. & P. 35, 10 B. & C. 8 (19 The Code of Virginia, chap. 144, § 2, provides as follows: change, wherein the drawer shall have expressed that it is any place other than 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 pro

England, it being conceived that the decision cast 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 at which the protest should be made. 45

936. 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 nonacceptance, or of the law of the place where the bill is payable, if it be for nonpayment; in other words, according to the law of the place where the dishonor occurs."

46

tested for nonpayment 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 will would have become payable had it been duly accepted." This section was first incorporated in the Code of 1849, upon recommendation of the revisers, who said in their report to the General Assembly: "It is a general rule of law that the protest for nonpayment is to be at the place where the drawee resides. In Mitchell, etc. v. Baring, etc., 4 Car. & P. 35, 19 Eng. C. L. 261, 10 B. & C. 4, 21 Eng. C. L. 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 nonpayment 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 nonpayment in London. Yet, though this was the usage, the doubt arose after the decision in Mitchell, etc. v. Baring, etc., whether such usage would be sustained by the courts, and the statute of 2 and 3 Wm. IV., chap. 98, was passed to remove the doubt. We propose, it will be perceived, to adopt the same statute in Virginia." Report of Revisers, p. 719. See ante, § 651, vol. 1. 45. Story on Bills, § 284; Thompson on Bills (Wilson's ed.), 309. 46. Shanklin v. Cooper, 8 Blackf. 41; Turner v. Rogers, 8 Ind. 139; Carter v. Union Bank, 7 Humphr. 548; Onondaga County Bank v. Bates, 3 Hill (N. Y.), 53; Rothschild v. Currie, 1 Q. B. 43; Brown v. Jones, 25 N. W. 454, citing the text; ante, § 935. See chapter XXVII, vol. I, section IX; Bigelow on Bills, 275; Wharton on Evidence, § 123; Brown v. Jones, 125 Ind. 375, 25 N. E. 452, 21 Am. St. Rep. 227, citing with approval the text.