This

by an indorser or a drawer of demand and notice. waiver may arise either from a party's words or his acts.2 A promise to give a note for the amount,3 or the giving of a note for the amount, by the indorser, being an acknowledgment of liability, is a waiver, provided it be done by one who has knowledge of his release. But there is some authority which might seem, but really is not," to the contrary; and certain rulings have been made which might seem to dispute the general rule. Thus, an admission after maturity of due service of protest did not bind the indorser as by a . waiver apparently, for it was held that such an admission was prima facie evidence of notice of protest, rebutted as soon as it appeared that there was in fact no legal protest. But an agreement by an indorser to give security for his liabil ity, although it was made after maturity, was not a waiver.? This decision can be justified on the ground that there was no proof of the indorser's knowledge. The giving of security raises a presumption of waiver. If it were given with knowledge, that presumption becomes absolute. As soon as the fact appears, the burden is thrown on the indorser to show his lack of knowledge. Therefore the decision is wrong, for judgment on this question should have been for the plaintiff, the burden of proof being on the defendant. The offer to indorse another note was not a waiver, because it was not perhaps an unconditional admission of liability. Nor can an offer of payment in depreciated bank bills,10 or in Confed

1 Bogart v. McClung, 11 Heisk. 105; Leonard v. Gary, 10 Wend. 504; Oglesby v. Stacy, 10 La. Ann. 117 (after suit brought); Parsons v. Dickinson, 23 Mich. 56.

2 Staylor v. Ball, 24 Md. 183; Parsons v. Dickinson, 23 Mich. 56.

3 Fell v. Dial, 14 S. C. 247. This could be considered, perhaps, as a new promise.

4 Leonard v. Hastings, 9 Cal. 236 (made with knowledge, possibly). 5 See the cases following.

6 Todd v. Neal, 49 Ala. 266. And see Newberry v. Trowbridge, 13 Mich. 263 (wrong).

7 Carter v. Burley, 9 N. H. 558.

8 Union Bank v. Govan, 10 Smedes & M. 333.

9 Laporte v. Landry, 5 Mart. (N. S.) 359, 4 Mart. (N. S.) 125. But this is a questionable ruling.

10 Newberry v. Trowbridge, 13 Mich. 263. Or in Confederate money. Tardy v. Boyd, 26 Grat. 631.

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erate money," be considered a waiver, since neither acknowledgment is unqualified. An offer to pay part of the note at the time of the offer and a part later raised no presumption of waiver.12 On the other hand, an admission of the justice of the claim, even after suit brought, and a statement by the indorser to the holder that he expected to have to pay, coupled with a request for the holder to keep on trying to collect from the maker, were both held to be waivers. In all cases of acknowledgments which are not new promises after maturity, or partial payments after maturity, or express waivers after maturity, it is the rule that, if made with full knowledge, the admission becomes absolute.15 The acknowledgment alone appearing, the defendant indorser may rebut the prima facie case by proof of his lack of knowledge, or by showing that the admission was a mistake.16

ARTICLE VI.-PROTEST AND CERTIFICATE.

§ 305. Meaning and form of protest.- The word "protest" as used by judges and lawyers has two meanings: one, those acts necessary to charge a drawer or indorser;1 the other, the formal certificate drawn up by a notary or some one acting in place of a notary, which shows the demand. and dishonor with the accompanying proof of notice, if any.2 The form and sufficiency of the certificate of protest is necessarily governed by the law of the place where the protest is made. The admissibility of the certificate in evidence.

11 See the last case cited.

1 White v. Keith, 97 Ala. 668;

12 Barkalow v. Johnson, 16 N. J. Ayrault v. Pacific Bank, 47 N. Y. Law, 397.

13 Oglesby v. Stacy, 10 La. Ann. 117.

14 Parsons v. Dickinson, 23 Mich. 56.

570.

2 Townsend v. Lorain Bank, 2 Ohio St. 345.

3 Neederer v. Barber, Fed. Cas. No. 10,079; Tickner v. Roberts, 11

15 The preceding cases treat the La. 114; Carter v. Burley; 9 N. H.

matter in this light.

16 A mistaken admission may be corrected. Commercial Bank v. Clark, 28 Vt. 325.

558; Chew v. Read, 11 Smedes & M. 182; Dwight v. Richardson, 12 Smedes & M. 325.

is governed, however, by the law of the place of trial of the action. In the certificate the paper protested must be intelligibly described."

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§ 306. Execution of the certificate.- The certificate should be made by a notary1 or by some one who has notarial powers; it may be a justice of the peace, or, where there is no notary, by a private person in the presence of witnesses. The certificate need not be under seal unless the statute require it. It need not be under oath unless the statute so provide. In some jurisdictions it must be witnessed, but the witnesses need not be present at the act of protest. The notices need not be actually annexed to the certificate by the notary. The certificate may be drawn up in due course of business,10 some authorities requiring it to be done on the same day." A second certificate may be made if the first is lost. The original protest may be issued. The certificate need not appear to be a transcript from some record, unless the statute require a record.

4 See § 307, post.

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5 Lionberger v. Meyer, 12 Mo. App. 575; Fulton v. Maccracken, 18 Md. 528; Collins v. Bank, 4 Baxt. 422.

7 Allain v. Whitaker, 5 Mart. (N. S.) 511; Gale v. Kemper, 10 La. 205.

8 Bradford v. Cooper, 1 La. Ann. 325, and cases in last case of last

1 See §§ 247, 278, ante, as to the note cited. notary's deputy or clerk.

9 Jones v. Berryhill, 25 Iowa, 289;

2 Austin v. Miller, 5 McLean, 153. Barstow v. Hiriart, 6 La. Ann. 98.

3 See § 246, ante.

4 Lambeth v. Caldwell, 1 Rob. (La.) 61; Bank of Kentucky v. Pursley, 3 T. B. Mon. 238; Second Nat. Bank v. Chancellor, 9 W. Va. 69. See Morris v. Foreman, 1 Dall. 193. 5 Rindskoff v. Malone, 9 Iowa, 540. A statute may require the certificate to be verified. See Dorsey v. Merritt, 6 How. (Miss.) 390; Faulkner v. Faulkner, 73 Mo. 327. 6 See last two cases cited.

See Jordan v. Long, 109 Ala. 414. and Winchester v. Winchester, 4 Humph. 51.

10 Bailey v. Dozier, 6 How. 23; Chatam Bank v. Allison, 15 Iowa, 357.

Il Aiken v. Cathcart, 2 Spears, 642; Commercial Bank v. Barksdale, 36 Mo. 563.

12 Killam v. McKoon, 31 Hun, 519. 13 Starr v. Sandford, 45 Pa. 193.

307. Certificate as evidence. A certificate of protest by a notary upon foreign bills proves a demand of payment and notice, if it so recites; but if the protest certificate is made by some other officer than a notary, his authority to protest must be proven as a fact under the foreign law." The allowance of such proof by certificate upon foreign protest exists by virtue of the law merchant, and foreign protest can be proven in no other way. But there are numerous statutes of various states which permit protest of other paper than foreign bills, and there are various statutes which prescribe the effect of such protest as evidence. These statutes may be: 1st. A statute which allows within the particular state the protest of other paper than foreign bills and makes the certificate thereof evidence either of demand or of notice and demand. Such a statute, it is plain, would have no bearing upon paper protested out of the state, and would have no bearing upon the admissibility of a certificate made out of the state. 2d. A statute may make all protests in another jurisdiction admissible in evidence when made upon paper not properly protestable by a notary. In such case it makes no difference whether the law of the other jurisdiction where the protest was made provides for such protest or not. 3d. A statute in the jurisdiction where the protest is made may provide for protest upon paper other than foreign bills, but the protest may be offered in evidence in another state. where there is no statute which makes the certificate evidence. In the latter case, since the protest is valid where made, according to the principle herein before stated, the

1 Dickens v. Beal, 10 Pet. 572; Pierce v. Indseth, 106 U. S. 546. 2 So of a French huissier. Chanoine v. Fowler, 3 Wend. 173. 3 See § 246, ante, note 1.

4 White v. Engelhard, 2 Smedes & M. 38; Sims v. Hundley, 6 How. 1. Such a statute would not make good a certificate of a state notary acting outside of his state. Dutchess Co. Bank v. Ibbotson, 5 Denio, 110.

5 Rushworth v. Moore, 26 N. H. 188; Dakin v. Graves, 48 N. H. 45; Daniel v. Downing, 26 Ohio St. 578; Douglas v. Bank of Commerce, 97 Tenn. 133; Bradley v. Northern Bank, 60 Ala. 252.

6 Union Bank v. Middlebrook, 33 Conn. 95; Kern v. Von Phul, 7 Minn. 426.

7 Townsley v. Sumrall, 2 Pet. 170.

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certificate ought to be admissible in evidence when supplemented with proof of the foreign law, if the paper was payable where protested, but this position is apparently denied in other courts; no reason is given, but it must be for the reason that no sovereignty can prescribe rules of evidence for another one's courts." If the certificate is admissible it needs no proof of its execution; it proves itself.10 And this is true both of protest on a foreign bill and of protest permitted by a statute. If the notary be dead, the books of the ," or certified extracts from them made by competent notary, 11 authority, are in all cases admissible to prove the notary's demand and notice, provided the notary made the entries himself, and they were not made by some one who is alive.13 A statute, also, on this subject exists in some jurisdictions.1

§ 308. Recitals of certificate.-The certificate to be sufficient as proof of demand and notice should state in some way that a demand was made, that payment was refused, and that notice of non-payment was given.' The fact of demand should be stated, but the certificate need not state the hour. If it states that demand was made at a place of busi

8 Carruth v. Walker, 8 Wis. 252; Lawson v. Pinckney, 40 N. Y. Super. Ct. 187. See Teconic Bank v. Stack pole, 41 Me. 302; Carter v. Burley, 9 N. H. 558. Both these cases treat a promissory note indorsed in another state as a foreign bill. Dunn v. Adams, 1 Ala. 527, semble.

9 Corbin v. Planters' Bank, 87 Va. 661; Etting v. Schuylkill Bank, 2 Pa. 355; Schoneman v. Fegley, 7 Pa. 433. See Union Bank v. Hyde, 6 Wheat. 572; McAllister v. Smith, 17 Ill. 328; Sumner v. Bowen, 2 Wis. 524. The certificate can be used as a memorandum by the notary as a witness. Bernard v. Barry, 1 G. Greene, 388.

10 Harrison v. Brown, 16 La. 282; Dickens v. Beal, 10 Pet. 572; Shanklin v. Cooper, 8 Blackf. 41.

11 Austin v. Wilson, 24 Vt. 630; Nichols v. Webb, 8 Wheat. 326; Bank of Wilmington v. Cooper, 1 Har. 10.

12 Portas v. Painboeuf, 1 Mart. (O. S.) 267; Halliday v. Martinet, 20 Johns. 168 (sworn copy); Homes v. Smith, 16 Me. 181; Bodley v. Scarborough, 5 How. (Miss.) 729. Contra, Williamson v. Patterson, 2 McCord, 132.

13 Wilber v. Selden, 6 Cow. 162. 14 McKnight v. Lewis, 5 Barb. 681. 1 Crowley v. Barry, 4 Gill, 194; Gardner v. Bank of West Tennessee, 1 Swan, 419; Langley v. Palmer, 30 Me. 467.

2 The certificate should show presentment to the proper person (Duckert v. Von Lilienthal, 11 Wis. 56), or presentment at his residence