Where a promissory note is made by one who signs his name as 'agent,' without disclosing a principal, the note, as we have seen, is the agent's' own undertaking as if he Note signed by were principal. Presentment accordingly should one as "agent." be made upon him, or at all events it may properly be made upon him, though the agency' be real; indeed, demand may, it seems, be made upon him though he may have ceased to be agent at the time of the maturity of the note.' If the name of the principal were given, and the undertaking made his undertaking, demand could, it seems, be made upon either, upon the agent, provided that he remained such till maturity; and upon the principal, because the promise in reality was his promise. It would not be necessary to make presentment to both, even though the promise were the joint promise of the two, because of the agency.

by two or more

Where paper is made or accepted by two or more persons jointly, demand must by the better rule be made upon both or all, unless they are partners, or unless some other Paper signed agency existed between them in respect of pay- jointly or ment. If they are partners, or one of them is severally. agent for the rest, presentment will be sufficient, where no place of payment is specified, if made upon any one of the partners or upon the agent. Upon the death of one of the joint makers or acceptors, presentment to the survivors will, it seems, be sufficient; clearly that would be the case where they were partners.

If the makers or acceptors are severally bound, presentment made to any one of them will be sufficient to bind parties conditionally liable, for the promise is the individual promise of each, as much as if the others had not promised. And this is true as well of a 'joint and several' undertaking as of a several 1 Hall v. Bradbury, 40 Conn. 32.

2 Arnold v. Dresser, 8 Allen, 435; Union Bank v. Willis, supra; Bank of Red Oak v. Orvis, 40 Iowa, 332; Willis v. Green, 5 Hill, 232; Gates v. Beecher, 60 N. Y. 518, denying Harris v. Clark, 10 Ohio, 5. See also Greenough v. Smead, 3 Ohio St. 415.

3 Gates v. Beecher, supra; N. I. L. § 84, even though there has been a dissolution of the firm.'

one merely; for the meaning of the engagement is that the parties promise in two distinct, not inseparable, ways: they promise jointly and they promise separately; that is, they are bound in either way.1

1 It was a mere slip of the court in Union Bank v. Willis, 8 Met. 504, at the end, to say that the contract in that case was joint and several; the decision reached required the court to hold the contract joint only.

CHAPTER X.

INDORSER'S CONTRACT CONTINUED: PROCEEDINGS UPON DISHONOR.

§ 1.

PROTEST.

Act of notary.

By the law merchant, unwritten and written, the first step necessary after the dishonor of a foreign bill of exchange-a step common and by statute permissible, but not necessary, in the case of inland bills, promissory notes, and chequesis protest. This is a highly characteristic step, taken in ordinary cases only by a public officer called a notary public; though the Statute permits the protesting of bills of exchange by any respectable resident of the place where the bill is dishonored,' while silent in regard to promissory notes. A notary public is an officer of international character, or at all events having international (and interstate) functions, and recognized the world over. And it is because the bill of exchange is a foreign instrument that the services of a notary are required, if obtainable.'

Protest is manifested by a formal certificate annexed to the bill or a copy of it,5 in writing under seal, of a notary, or of some one taking the place of a notary, by which he attests How protest is the dishonor of the dishonored paper. The step is made. wholly distinct and separate from presentment or any of the other steps necessary to fix an indorser's liability, though it is dependent for its validity upon due presentment.

1 N. I. L. §§ 125, 159. See also § 164. Protest, 'to bear public witness, declare solemnly.' 'Pro, publicly, and testare, to bear witness.' Skeat's Ety

mological Dict.

2 N. I. L. § 161.

8 Probably an oversight.

✦ When the services of a notary may be performed by another, see ante,

p. 125.

5 N. I. L. § 160.

3

Neither the law merchant nor statute has prescribed any form of words to be used in the certificate of protest; but the law merchant, touching foreign bills, does require that certain facts should appear in it, in order to make it valid.' These facts are the several ones going to show dishonor; to wit, due presentment, demand, and refusal, or an equivalent, or a sufficient excuse for omission. This requires that the certificate should state time and place of presentment, and in principle the person or persons to whom presentment was made. Thus, in regard to persons, if the bill has been accepted by more than one the certificate should state that presentment was made to all, or should state why it was not, as, for example, that the acceptors, being A and B, were partners, and that presentment was made to A. It will not suffice for the certificate to recite that 'due presentment' was made; that would be but inference, where, because the bill is a foreign international instrument, facts should appear.

The rule of the law merchant is thus exacting because by that law the certificate of protest of a foreign bill, if the certificate is Protest of for- in existence and obtainable, is the only evidence of eign bills. the dishonor of the bill. The drawer, or at least some of the parties secondarily liable, live in another state or

1 N. I. L. § 160.

2 See Staniback v. Bank of Virginia, 11 Gratt. 260; People's Bank v. Brooke, 31 Md. 7; Farmers' Bank v. Allen, 18 Md. 475; Walmsley v. Acton, 44 Barb. 312; Musson v. Lake, 4 How. 262.

3 If the instrument is payable at bank, it should, it is held, show presentment there (where the holder stands on the certificate alone); it is not enough that it states that the bill was presented to the cashier. Peabody Co. v. Wilson, 29 W. Va. 528.

N. I. L. § 160, 1.

5 This is not stated by the Statute, but is perhaps to be inferred from the statement that the protest must specify' the demand and answer, if any, or the fact that the drawee or acceptor could not be found.' § 157, 4. The rule is plain in point of principle, where the holder rests his case upon the certifcate; the certificate should then plainly make a case of dishonor. But see Douglas v. Bank, 97 Tenn. 133, holding that the certificate need not state the persons on whom demand was made if the demand was made at the place designated for payment.

Otsego Bank. Warren, 18 Barb. 290; Nave v. Richardson, 36 Mo. 130.

country, presumptively, from that of the drawee, and hence are entitled to know authoritatively that the dishonor has been real, such as to justify the steps by which their liability is fixed and made absolute. The notarial certificate of the protest of a foreign bill is treated as a sort of international document, and, it seems, stands or falls by itself; its deficiencies, if there be any, probably cannot be made good by evidence from without, however clear the facts may be, and whether the protest be for non-acceptance or non-payment. On the other hand, being such a document, it is more readily received in the courts than other written instruments. The genuineness of the notary's signature need not be proved; his seal proves that. But evidence would be admitted, of course, that the seal was not genuine, and so that the whole certificate was fraudulent.

Nor indeed are the statements made in the certificate conclusive evidence, though they ought to be taken as strong evidence, and not so easily overturned as ordinary evidence. And in the case of a foreign bill the certificate is treated, like other written evidence of a transaction, within the general rule concerning the 'best' evidence; if the certificate exists, and can be produced, it must be produced to prove the dishonor; if it does not exist or cannot be produced, other evidence of dishonor is admissible, though proof must be furnished that the bill was in fact protested, or a sufficient excuse shown if it was not. The object of the certificate being merely to furnish evidence of sufficient dishonor, its statements of other facts, if such there be, cannot be received.

The States of the American Union, it should be remembered, are foreign to each other for the purposes of the law under consideration.

1 See Ocean Bank v. Williams, 102 Mass. 141; Buckner v. Finley, 2 Peters, 586; Orr v. Maginnis, 7 East, 359. This appears to follow from the fact that the protest, that is, the certificate, is necessary, in the case of a foreign bill, to prove the dishonor of the instrument. The certificate can no doubt be amended by the notary before it is offered in evidence; but once it is offered in evidence, the die is cast. Secus, if the instrument be an inland bill, a note, or a cheque. 2 Spence v. Crockett, 5 Baxt. 576; Ricketts v. Pendleton, 14 Md. 320. * Bank of United States v. Daniel, 12 Peters, 32, 54; Commercial Bank v. Varnum, 49 N. Y. 269.