CHAPTER
XIV.

By whom to be made.

Office of a notary.

a protest is, or was, essential in case of dishonour of any bill; and, though by the law of England it is unnecessary in the case of an inland bill, yet for the sake of uniformity in international transactions, a foreign bill must be protested (c). Besides, a protest affords satisfactory evidence of dishonour to the drawer, who, from his residence abroad, might experience a difficulty in making proper inquiries on the subject, and be compelled to rely on the representation of the holder. It also furnishes an indorsee with the best evidence to charge an antecedent party abroad; for foreign Courts give credit to the acts of a public functionary, in the same manner as a protest under the seal of a foreign notary is evidence, in our Courts, of the dishonour of a bill payable abroad (d).

But a protest is not necessary on a foreign promissory note, nor on a bill, though really a foreign bill, that does not show that on its face (e).

The protest should be made by a notary public; but, if there be no such notary in or near the place where the bill is payable, a certificate attesting the dishonour may be given by an inhabitant, in the presence of two witnesses (ƒ).

A notary, registrarius, actuarius, scrinarius, was anciently a scribe that only took notes or minutes, and made short drafts of writings and other instruments, both public and private. He is at this day a public officer of the civil and canon law, appointed by the Archbishop of Canterbury, who, in the instrument of appointment, decrees, "that full faith be given, as well in as out of judgment, to the instruments by him to be made (g). This appointment is also registered and subscribed by the clerk of her Majesty for faculties in Chancery. The present act for the regulation of notaries is the 41 Geo. 3, c. 79 (h). By the 11th section of this statute, any person acting for reward as a notary,

(c) See Borough v. Perkins, 1 Salk. 131; 2 Ld. Raym. 993; 6 Mod. 30; and the argument in Trimby v. Vignier, 1 Bing. N. C. 151; 4 M. & Sc. 695; 6 C. & P. 25, as to a protest of a French bill payable in France.

(d) Anon., 12 Mod. 345; Rep. temp. Holt, 297.

(e) Bonar v. Mitchell, 19 L. J., Exch. 302; 5 Exch. 415; that is, so far as the law of this country is concerned, but it may possibly

without being duly admitted, forfeits 50%. to him that will sue for the same.

By the 6 Geo. 4, c. 87, s. 20, her Majesty's consuls at foreign ports or places are empowered to do all notarial

acts.

And, by the 3 & 4 Will. 4, c. 70, attorneys residing more than ten miles from the Royal Exchange may be admitted to practise as notaries.

CHAPTER

XIV.

Subject to the other provisions of the Code, the protest When to be of a foreign bill should be begun, at least (and such an made. incipient protest is called noting), on the day on which acceptance or payment is refused (i); but it may be drawn up and completed at any time before the commencement of the suit (k), or even before or during the trial (1), and antedated accordingly. An inland bill could not formerly be protested for non-payment till the day after it was due (m). A bill should not be protested on a bank holiday; it should be protested on the morrow (n).

A protest must be made where the dishonour occurred (o). Where to be But when a bill presented through the post, is returned made. by post dishonoured, it may be protested at the place to which it is returned; on the day, if received during business hours, if not, on the next business day. When a bill drawn payable elsewhere than at the place of business or residence of the drawee is dishonoured by non-acceptance, it must be protested at the place where it was payable, and no further presentment to or demand on the drawee is necessary (p).

(i) Code, s. 51 (4). The other provisions seem to be those contained in sub-s. (9), as to when protest is excused or waived, or delay in making it will be excused, and sect. 93 as to noting.

(k) Code, s. 93; Chaters v. Bell, 4 Esp. 48; Selw. 11th ed. 381; but see Vandewall v. Tyrrell, M. & M. 87, where there is payment for honour. But this case did not support the position that the notarial act cannot be formally extended afterwards. Geralopulo v. Wieler, 10 C. B. 690.

(1) Bull N. P. 272; Orr v. Maginnis, 7 East, 361; Thompson

on Bills, p. 145.

(m) 9 & 10 Will. 3, c. 17 (now repealed).

(n) As due presentment can only be made on a business day, and noting is to be on the same day, it follows that noting cannot be done on Bank holidays, or other non-business days. See p. 207; and 34 Vict. c. 17, Appendix.

(0) See Mitchell v. Baring, 10 B. & C. 4; M. & M. 381; 4 C. & P. 35.

(p) Code, s. 51 (6) b. The repealed Act, 2 & 3 Will. 4, c. 98, was to the same effect.

CHAPTER

XIV.

Form of protest.

Stamp on protest.

Protest for better secu

rity.

Noting, what.

A protest is a solemn declaration signed by the notary, containing a copy of the bill, and specifying :

The person at whose request the bill is protested;
The place and date of protest;

The cause or reason for protesting;

The demand made, and the answer given (if any), or

the fact that the drawee or acceptor could not be found (q).

When the protest is made for a qualified acceptance, it must not state a general refusal to accept, otherwise the holder cannot avail himself of the qualified acceptance (r).

Where the stamp duty on the bill or note does not exceed 18., a protest is subject to the same duty as the bill or note, and in any other case to a duty of 1s. (s).

Besides the protest for non-acceptance and for non-payment, the holder may protest the bill for better security. Protest for better security is, where the acceptor becomes bankrupt or insolvent or suspends payment before the bill falls due. In this case, the holder may cause a notary to demand better security; and, on its being refused, the bill may be protested, and notice of the protest may be sent to an antecedent party. Yet, it seems, the holder must wait till the bill falls due before he can sue any party. Nor does there appear any advantage from the protest more than from simple notice of the circumstances (t); except that, after such a protest, there may be a second acceptance for honour (u). Whereas, without the intervention of a protest, there cannot be two acceptances on the same bill (v).

Noting is a minute made on the bill by the officer at the time of refusal of acceptance or payment. It consists of his initials, the month, the day, the year, and his charges for minuting (w); and is considered as the preparatory step to protest. "Noting," says Mr. J. Buller, is unknown in the law, as distinguished from the protest: it is merely a preliminary step to the protest, and has grown into prac

XIV.

tice within these few years" (x). A bill, however, is often CHAPTER noted where no protest is either meant or contemplated, as in the case of many inland bills. The use of it seems to be, that a notary, being a person conversant in such transactions, is qualified to direct the holder to pursue the proper conduct in presenting a bill, and may, upon a trial, be a convenient witness of the presentment and dishonour. In the meantime, the minute of the notary, accompanying the returned bill, is satisfactory assurance of non-payment or non-acceptance, to the various parties by whom the amount of the bill may be successively paid. In case of an inland bill, as it could only be protested under the statute, and the fees of a notary for protesting were thereby fixed at 6d., it has been said, that no more could be charged for noting (y), though it was usual to charge more (z).

The Court would not allow the expense of noting to be recovered against the acceptor (a), unless it were laid as special damage in the declaration. But in actions brought

since the 18 & 19 Vict. c. 67 (b), the expenses of noting may be recovered.

If the drawer reside abroad, a copy, or some memorial Notice of of the protest, ought to accompany the notice of dis- protest. honour (c). But notice of the protest certainly is not necessary, if the drawer resides within this country, though, at the time of non-acceptance, he may happen to be abroad (d); nor if, at the time of dishonour, he have returned home to this country. "If," says Lord Ellenborough, "the party is abroad he cannot know of the fact of the bill having been protested, except by having notice of the protest itself; but, if he be at home, it is easy for him, by making inquiry, to ascertain that fact" (e).

And it is now decided that a copy of the protest need not Copy of in any case be sent (ƒ).

(x) Leftley v. Mills, 4 T. R. 170. (y) Leftley v. Mills, 4 T. R. 170; Chitty, 9th ed. 465.

(2) Vide Appendix.

(a) Hobbs v. Christmas, Sittings after Mms. T. 1831; Kendrick v. Lomas, 2 C. & J. 405; 2 Tyrw. 438; Rogers v. Hunt, 10 Exch. 474.

(b) Repealed. See now Code, s. 57.

(c) Bayley; Poth. 148; Robins v. Gibson, 1 M. & S. 288; vide infra, Chapter on Notice of Dis

honour.

(d) Cromwell v. Hynson, 2 Esp. 511.

(e) Robins v. Gibson, 1 M. & Sel. 288; 3 Camp. 334. In Ex parte Lowenthal, the Lords Justices held that notice of protest need not acc. mpany notice of dishonour; there was, however, evidence of a subsequent admission. L. R., 9 Ch. Ap. 591.

(f) Goodman v. Harvey, 4 Ad. & E. 870; 6 N. & M. 372.

protest.

CHAPTER
XIV.

When protest excused.

Protest of in

Protest is dispensed with by any circumstance which would dispense with notice of dishonour, and so to delay in protesting, provided the bill be protested within a reasonable time after the cause of the delay ceases to operate, or the delay be not attributable to the holder's default (g). Hence protest of a foreign bill is excused, if the drawer had no effects in the hands of the drawee, and no reasonable expectation that the bill would be honoured (h); or, if the drawer has admitted his liability, by promising to pay. "By the drawer's promise to pay,' observes Lord Ellenborough "he admits the existence of everything which is necessary to render him liable. When called upon for payment of the bill, he ought to have objected that there was no protest. Instead of that he promises to pay it. I must, therefore, presume he had due notice, and that a protest was regularly drawn up by a notary "(i).

And it is said, that where the drawer adds a request or direction, that in the event of the bill not being honoured by the drawee, it shall be returned without protest, by writing the words "retour sans protêt," or sans frais,” a protest as against the drawer, and perhaps as against the indorsers (j), is unnecessary.

Protest of an inland bill is optional and but rarely reland bills and sorted to (k). notes,

of a lost bill.

The loss or destruction, or wrongful detention of a bill, is no excuse for the absence of protest; but where a bill is either lost or destroyed or wrongfully detained from the true holder, protest may be made on a copy or written particulars thereof (l).

(g) Sect. 51 (9). See post, Chapter on Notice of Dishonour. (h) Legge v. Thorpe, 12 East, 171; 2 Camp. 310.

(i) Gibbon v. Coggon, 2 Camp. 188; Patterson v. Beecher, 6 Moore, 319; Greenway v. Hindley, 4 Camp. 52.

(j) 1 Pardessus, 540; Chitty, 10th ed. 114. The drawer may, as we have seen, qualify his contract in writing on the bill by waiving as against himself any of the holder's duties, s. 16. Quare, whether this would bind an indorser unless he expressly waived too.

(k) Formerly a protest was

held necessary in order to recover interest. Harris v. Bensom, 2 Stra. 910; overruled by Windle v. Andrews, 2 B. & Ald. 696: 2 Stark. 425. Protest of an inland bill or note is, it is conceived, unknown to the common law, though those payable after date might be protested under the 9 & 10 Will. 3, c. 17 (now repealed), or the 2 & 3 Will. 4, c. 98 (also repealed), and as notes were put on the same footing as bills by the 3 & 4 Ann. c. 9 (repealed), presumably they also fell within the above acts.

(1) Poth. 145; Code, s. 51 (8).