(b) Section 3721, Ky. Stats. (sub-section 5) requires every certificate of a notary to state the date of the expiration of his commission; but a failure to do so does not vitiate the certificate. Harbour Pitt Shoe Co. v. Dixon, 22 K. L. R., 1169; 60 S. The certificate of the notary is prima facie evidence of demand and dishonor, Kentucky Stats., section 479. Tyler v. Bank of Kentucky, 7 Mon. (23 Ky.) 557; Trabue v. Sayre, 1 Bush (64 Ky.) 129. Where the owner of a bill fills up a blank indorsement by directing payment to be made to another, and delivers it to such other person for collection only, and the bill is thereafter indorsed specially by the agent for collection to another also for the purpose of collection only, and it is returned by the last indorsee protested for non-acceptance, the owner may strike out the indorsements subsequent to his own and convert the first indorsement into an indorsement to himself and use the certificate of protest as evidence of non-acceptance if, after such changes, the bill still appears to be that mentioned in the certificate. Bank of Tennessee v. Smith, 9 B. M. (48 Ky.) 609. Sections 3723 and 3724 of the Kentucky Statutes, which are reenactments of an Act of January 16, 1864, and of sections 3 and 5, Ch. 79 of the General Statutes, read as follows: "§ 3723. It shall be the duty of the notaries public of this Commonwealth to record in a well-bound and properly-indexed book, kept for that purpose, all protests by them made for the non-acceptance or non-payment of all bills of exchange, checks or promissory notes, placed on the footings of the bills of exchange, and on which a protest is now required by law, or of the dishonor of which such protest is now evidence by law, and a copy of such protest, certified by the said notary public under his notarial seal shall be prima facie evidence in all the courts of this Commonwealth. "§ 3724. Upon the resignation of such notary public or the expiration of his term of office, and he is not re-appointed, it shall be his duty to place such book in the office of the clerk of the county court in and for the county in which said notary was appointed; and when the notary shall die, his representative shall deposit the said book with the clerk aforesaid, and thereafter a copy of such record, certified by the clerk, shall be evidence in all the courts of this Commonwealth." These sections have not been repealed by the Negotiable Instruments Law, but as promissory notes are no longer on the footing of foreign bills of exchange, the sections quoted are now applicable only to protests of such bills. See note (a) to section 91. Section 3726 of the Kentucky Statutes is as follows: "When any bill of exchange or commercial paper has heretofore or shall here after be protested in any other State of these United States, in which the same is made payable, and by the laws of said State a notary public or other officer legally authorized to protest the same is required to give or send notice of the dishonor thereof to the parties, or when his certificate or a copy thereof that such notice or notices were sent is evidence thereof in the courts of such State, the same shall be received as evidence in all the courts of this Commonwealth, in all actions of such bills of exchange and have the same effect as evidence as is given to such evidence in the courts of such State." § 154. 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 creditable witnesses (b). Eaton and Gilbert, Com. Paper, 615. Norton, B. & N., 371. Randolph, Com. Paper, § 1152. (a) The presentment and demand should be made by the notary himself and not by his clerk; but where by law or custom presentment and demand by a clerk or deputy of the notary is sanctioned, a protest signed by the notary which certifies that the presentment and demand were made by nis deputy is prima facie evidence that the presentment, demand and protest have been made according to such law or usage. McClane v. Fitch, 4 B. M. (43 Ky.) 600; Bank of Kentucky v. Gary, 6 B. M. (45 Ky.) 630. A notary is not disqualified from making the protest by the fact that he is the cashier of, and a stockholder in the bank on behalf of which he makes the protest. Moreland v. Citizens' Savings Bank, 97 Ky., 211; 17 K. (b) Read v. Bank of Kentucky, 1 Mon. (17 Ky.) 92; Bank of Kentucky v. Pursley, 3 Mon. (19 Ky.) 239. In such case, the person protesting should draw and certify the certificate. § 155. Protest; at What Time at What Time to be Made; Noting. When a bill is protested, such protest must be made on the day of its dishonor, unless delay is ex cused as herein provided. When a bill has been duly noted, the protest may be subsequently extended as of the date of the noting (a). Eaton and Gilbert, Com. Paper, 616. Norton, B. & N., 369, 371. Randolph, Com. Paper, § 1140. (a) The short note of a notary usually made upon a bill when it is presented for non-acceptance, which is drawn payable after date, when acceptance has been refused, is competent evidence for a defendant to prove that the bill had been presented and dishonored, in order to avoid responsibility for want of notice in due time of such dishonor. Smith v. Roach, 7 B. M., (46 Ky.) 19. § 156. Protest; Where Made.-A bill must be protested at the place where it is dishonored, 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 place where it is expressed to be payable; and no other presentment for payment to, or demand on, the drawee is necessary. Eaton and Gilbert, Com. Paper, 617. Norton, B. & N., 370, 371. § 157. Protest Both for Non-acceptance and Non. payment.-A bill which has been protested for nonacceptance may be subsequently protested for non-payment. Eaton and Gilbert, Com. Paper, 618. Norton, B. & N., 371. § 158. Protest Before Maturity Where Acceptor Bankrupt or Insolvent.-Where the acceptor has been adjudged a bankrupt or an insolvent or has made an assignment for the benefit of creditors, before the bill matures, the holder may cause the bill to be protested for better security against the drawer and indorsers. Eaton and Gilbert, Com. Paper, 618. Norton, B. & N., 371. § 159. When Protest Dispensed With.-Protest is dispensed with by any circumstances which would dispense with notice of dishonor. Delay in noting or protesting is excused when delay is caused by circumstances beyond the control of the holder and not imputable to his default, misconduct or negligence. When the cause of delay ceases to operate, the bill must be noted or protested with reasonable diligence. Eaton and Gilbert, Com. Paper, 619. Norton, B. & N., 371. § 160. Protest Where Bill is Lost, Et Cetera.Where a bill is lost or destroyed or is wrongly detained from the person entitled to hold it, protest may be made on a copy or written particulars thereof. Eaton and Gilbert, Com. Paper, 619. Norton, B. & N., 371. ARTICLE V. ACCEPTANCE OF BILLS OF EXCHANGE FOR HONOR. Section 161. When bill may be accepted for honor. 162. Acceptance for honor; how made. 163. When deemed to be an acceptance for 164. To whom acceptor for honor liable. 166. Maturity of bill payable after sight accept- 167. Protest of bill accepted for honor, et cetera. 168. Presentment for payment to acceptor for honor; how made. 169. When delay in making presentment is ex cused. 170. Dishonor of bill by acceptor for honor; protest necessary. § 161. When Bill May be Accepted for Honor.Where a bill of exchange has been protested for dishonor by non-acceptance or protested for better security, and is not overdue, any person not being a party already liable thereon may, with the consent of the holder, intervene and accept the bill supra protest for the honor of any party liable thereon or for the honor of the person for whose account the bill is drawn. The accept Note. The numbers of the sections of this article in other States than Kentucky are as follows: Arizona, 3464-3473; Colorado, Connecticut, District of Columbia, Florida, Idaho, Iowa, Massachusetts, Montana, New Jersey, North Carolina, North Dakota, Oregon, Pennsylvania, Tennessee, Utah, Virginia and Washington, 161-170; Maryland, 180-189; New York, 280-289; Ohio, 3176y-3177g; Rhode Island, 169-178; Wisconsin, 1681-18-1681-27. |