CHAPTER XIV.

OF PROTEST AND OF RE-EXCHANGE.

SECTION I.

OF PROTEST.

WHEN negotiable paper is protested, the protest is made before a notary public,(m) if there be such an officer within reach. If not, it is said that it may be made before any respectable inhabitant of the place, before two proper witnesses.(n)

(m) The origin of the term notary is traced as far back as the ancient Roman Republic, when the term notarius was applied to a person who was occupied in taking down the words of a speaker in notes or writing (note). The notarii were short-hand writers, and that they used symbols of abbreviation is clear from many passages of ancient writers; the persons employed in this service were often slaves. But the functions of the modern notary public were doubtless derived from a class of public officers, mentioned under the later Roman law by the name of tabelliones, whose business it was to draw up contracts, wills, and other legal instruments to be presented to the courts of law, or other authorities of state. To make these documents legal evidence for judicial purposes, it was at length found necessary to require by law that they should be attested by witnesses, and that the notary (tabellio) should be present in person at the drawing up of the document, and also should affix his signature and the date of the execution. Under the Frankish kings, officers exercising similar functions were called cancellarii and notarii. In England, notaries appear to have been known as public officers before the Norman conquest Spelman cites some charters of Edward the Confessor as being executed for the king's chancellor by notaries (Gloss., Tit. Notarius). It is certain that they were employed at a very early period to attest and authenticate instruments of moment and solemnity. They are mentioned in the statute of 27 Edw. III. c. 1. It is generally supposed that the power of admitting notaries to practice was vested in the Archbishop of Canterbury by 25 Hen. VIII. c. 21, § 4.

(n) Bayley on Bills, c. 7, § 2; Chitty on Bills, p. 333. In Burke v. McKay, 2 How. 66, Story, J. said that, in many cases, even with regard to foreign bills of exchange, the protest may, in the absence of a notary, be made by other functionaries, and even by merchants. See also Read v. Bank of Kentucky, 1 T. B. Mon. 91, in which case it was held that it was no objection that a note held by a bank was protested, in the absence of a notary, by a private person who was a stockholder in the bank, it be ing sufficient that the witnesses were disinterested. It is not necessary for the witnesses in such case to subscribe their names. It was further held in this case, that a private individual has no right to charge fees for protesting. It is held, however, that a no

A notary public is a public officer, recognized as such all over the commercial world. The instrument of appointment now in use in England declares that full faith be given, "as well in judgment as thereout," to the instruments by him to be made; and language of the same meaning is sometimes used in commissions to notaries in the United States.

Very great importance has always been attached to the attestation of a notary public. (o) He is considered as receiving and noting the evidence or statements brought before him; "to protest," signifying literally "to testify before." He is regularly appointed and commissioned, and has his seal, which must be affixed to his official documents.(p)

tary who is a stockholder of a bank cannot make an admissible protest of a note for the bank. Herkimer County Bank v. Cox, 21 Wend. 119; Bank v. Porter, 2 Watts, 141. Mr. Brooke, in his treatise on the office and practice of a notary of England, says it does not appear that there is an usage, in the case of a protest of a foreign bill by a private inhabitant of the place, to require any witnesses to such protest, p. 103. In case of inland bills, it is required by the statute 9 & 10 William III. c. 17, that the protest by a private person be made in the presence of two or more credible witnesses. See also stat. 3 & 4 Anne, c. 9, §§ 6, 9. It is provided by the commercial code of France that all protests for non-acceptance or non-payment shall be made by two notaries, or by one notary and two witnesses, or by a bailiff and two witnesses.

Art. 173.

(0) It is stated in Burn's Ecclesiastical Law, 9th ed., Vol. III. p. 11, that "one notary public is sufficient for the exemplification of any act; no matter requiring more than one notary to attest it"; and the rule of the canon law as to the credit of a notary is unus notarius æqui pollet duobus testibus. Mr. Brooke thinks it not improbable that Massinger, the dramatist, was satirically alluding to some such rule, when, in the drama of the "New Way to Pay Old Debts," written before 1633, Sir Giles Overreach declares, —

"Besides, I know thou art

A public notary, and such stand in law

For a dozen witnesses."

Brooke's Notary, chap. 1; Burn's Ecclesiastical Law, Vol. III., Tit. Not. Pub.

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(p) It is everywhere held, that it is a sufficient authentication of a protest made in a foreign country or state, that it purports to be, and apparently is, under the seal of a notary. Anonymous, 12 Mod. 345; Chitty on Bills, 655; Townsley v. Sumrall, 2 Pet. 170; Halliday v. McDougall, 20 Wend. 81; Carter v. Burley, 9 N. H. 558; Crow ley v. Barry, 4 Gill, 194; Bank of Rochester v. Gray, 2 Hill, 227; Wells v. Whitehead, 15 Wend. 527; Kirksey v. Bates, 7 Port. Ala. 529; Fleming v. M'Clure, 1 Brev. 428; Bryden v. Taylor, 2 Harris & J. 396; Chase v. Taylor, 4 id. 54; Nicholls r. Webb, 8 Wheat. 326; Las Caygas ". Larionda, 4 Mart. La. 283; Ross v. Bedell, 5 Duer, 462. But if the protest is not made by a notary, or is not under seal, there must be evidence of the official character of the officer, and of the laws of the state or country where it was made, showing that it was duly made according to the laws there existing. Per Parker, C. J., in Carter v. Burley, 9 N. H. 558, 568; Chanoine v. Fowler, 3 Wend. 173; Bank of Rochester v. Gray, 2 Hill, 227. And of course where a seal to the protest is required by the law of the State where it is made, a protest without the seal will

In the case of foreign bills, protested in a country other than that in which the suit is brought, full faith and credit are given to the instrument of protest; and the original, or a duly certified copy, are admissible in evidence of the acts therein stated, so far as these acts are within the scope of a notary's official duty.(q) In the case of inland bills, and even foreign bills which are protested in the country where suit is brought, the protest is not admissible in evidence,(r) unless the notary has deceased since the protest was made.(s) In many of our States, however, this whole subject is regulated by statute.()

not be received in evidence as such. Tickner v. Roberts, 11 La. 14. It was held, however, in Lambeth v. Caldwell, 1 Rob. La. 61, that the want of a seal to the certificate of a notary was no objection to its admission in evidence as proof of notice to the indorsers of a note upon which the action was brought. It was said in that case, that there was no law requiring a notary to furnish himself with a seal. So also, in an early case in Kentucky, it was held that a notary's certificate of a protest was sufficient, under the statutes of that State, without a seal; and the court seemed to be of the opinion that such a seal was not required by the law merchant. Bank of Kentucky v. Pursley, 3 T. B. Mon 238. As to the sufficiency of a notarial seal, it is held that one stamped upon paper of sufficient tenacity to retain the impression is all that is required by the strictest rules of the common law. Ross v. Bedell, 5 Duer, 462; Carter v. Burley, 9 N. H. 558; Bank of Manchester v. Slason, 13 Vt. 334; Connolly v. Goodwin, 5 Calif. 220. But see Bank of Rochester v. Gray, 2 Hill, 227. See Kirksey v. Bates, 7 Port. Ala. 529, as to the requisitions of notarial seal under the statute of the State. But a scrawl is not a sufficient authentication, except in States where a scrawl or "Locus sigilli" is generally held to be the equivalent to a seal. Semble per Parker, C. J., in Carter v. Burley, 9 N. H. 588, supra, p. 634, note p.

(9) Townsley v. Sumrall, 2 Pet. 170, 178; Bryden v. Taylor, 2 Harris & J. 396. (r) Nicholls v. Webb, 8 Wheat. 326, dictum; Chesmer v. Noyes, 4 Camp. 129. (s) Nicholls . Webb, 8 Wheat. 326

(t) This is a matter of statutory regulation in many of the States. In New Hamp shire it is provided that "the protest of any bill of exchange, note, or order, duly cer tified by any notary public, under his hand and official seal, shall be evidence of the facts stated in such protest, and of the notice given to the drawer or drawers." Comp. Stats. 1853, p. 70, § 3. This statute is held to apply to protests of both foreign and domestic bills, and whether made by a notary resident in the State or elsewhere. The protest is only prima facie evidence of the facts stated, including the notice. Where the notary certified that he duly gave notice to the indorsers, without reciting what was done to give notice, the notice must be regarded prima facie to have been personal and actually given; and the insertion of the word duly does not vitiate the protest, on the ground that it is a conclusion of law. These points are decided in the late case of Rushworth v. Moore, 36 N. H. 188. The same points in regard to notice were decided in the same way in a recent case in Maine, Ticonic Bank v. Stackpole, 41 Maine, 321, in which State the same statutory provision existed until recently, it being omitted in the late revision of 1857. See R. S. of 1840, c. 44, § 12. Under that statute it was held that the certificate was not conclusive evidence of the facts stated as to the giving of notice. Bradley v. Davis, 26 Maine, 45. See Loud v. Merrill, 45 Maine, 516, 521. By the Revised Statutes of Maine of 1857, p. 273, § 4, it is provided in general terms

But while the protests or certificates of protest of a notary

that all copies or certificates granted by a notary, under his hand and notarial seal, shall be received as legal evidence of such transactions and of all the facts therein contained.

In Connecticut, it is provided that protests of inland bills of exchange, and promissory notes protested without the State, shall be admitted as prima facie evidence of the facts therein stated. Compilation of Stats. 1854. p. 93, § 128.

In New York, Wisconsin, and California, it is provided that the certificate of a notary, under his hand and seal of office, of the presentment by him of any promissory note or bill of exchange for acceptance or payment, and of any protest of such bill or note for non-acceptance or non-payment, and of the service of notice thereof, specifying the mode of giving such notice, and the reputed place of residence of the party to whom the same was given, and the post-office nearest thereto, shall be presumptive evidence of the facts contained in such certificate But in New York it is provided that this presumption shall not apply to any case in which the defendant shall annex to his plea an affidavit denying the fact of having received notice of non-acceptance or non-payment of such bill or note; nor to any case of a protest of an inland bill of exchange or of a promissory note made by any notary of that State, except in case of the death, insanity, or absence of the notary, so that his personal attendance or his testimony cannot be procured.

In New York and Wisconsin, it is further provided that any note or memorandum, made and signed by the notary at the foot of the protest or in a record, shall in the same way be presumptive evidence of notice sent; and in California it is provided that a certificate of a notary public, drawn from his record, stating the protest and the facts therein contained, shall be evidence of the facts in like manner as the original protest. See R. S. of N. Y., 4th ed., Vol. II. pp. 470, 471, §§ 33 - 36; R. S. of Wis. 1858, c 12, §§ 4, 6; Woods's Dig. of the Laws of Cal, 1858, p. 554, Art. 2848. Under these statutes it is not necessary to state the form of the notice given, McFarland v. Pico, 8 Calif. 626; nor the hour of presentment, Cayuga Co. Bank v. Hunt, 2 Hill, 635. The statute of New York, making notarial certificates evidence, applies only to protests made within the State by notaries of that State Kirtland. Wanzer, 2 Duer, 278; Bank of Rochester v. Gray, 2 Hill, 227; dictum of Harris, J. to the contrary, in Bank of Vergennes v. Cameron, 7 Barb 143. And the provision making the meniorandum evidence of notice does not extend to a statement of the presentment and demand of a note or bill. Otsego Co. Bank v. Warren, 18 Barb. 290.

In Pennsylvania, by an act passed 14th December, 1854, the protests of all notaries public, certified, according to law, under their hands and seals of office, in respect to the dishonor of all bills of exchange and promissory notes, and notice thereof, may be received and read in evidence as proof of the facts therein stated; and in Ohio the instrument of protest of any notary public appointed and qualified under the laws of that State, or the laws of any other State or Territory of the United States, accompanying any bill of exchange or promissory note which has been protested for nonacceptance or non-payment by such notary, shall be held and received as prima facie evidence of the facts therein certified. But in both Pennsylvania and Ohio it is provided that any party may be permitted to contradict by other evidence any such certificate. See Purdon's Dig. 1857, p. 1138; R. S of Ohio, 1854, c. 75, § 6.

The notarial certificate of protest is evidence of the facts therein set forth, although the notary, when examined, has no recollection of them; for the statute makes the certificate sufficient evidence of the facts therein certified, in the absence of contradictory proof. Sherer v. Easton Bank, 33 Penn. State, 134.

public are admitted in evidence, and this evidence is entitled to

In Maryland, Virginia, North Carolina, Tennessee, and Iowa, it is provided, in substance, that a protest duly made by a notary public of a bill of exchange, whether foreign or inland, for non-acceptance or non-payment, or of a promissory note for nonpayment, shall be prima facie evidence of such non-payment or non-acceptance, and that presentment was made and notice given in the manner stated. Dorsey's Laws of Md., Vol. II. p. 1257, c. 253, Act of 1837; Graham v. Sangston, 1 Md. 59; Code of Va. 1849, c. 144, § 7; R. Code of N. Car. 1854, c. 13, § 9; Code of Tenn. 1858, §§ 1799, 1800; Code of Iowa, 1851, § 2414. In Tennessee, it is further provided, that, after the notary's death, his record of notice of dishonor shall be prima facie evidence of the fact. Code, supra, § 1801.

The design of the statute of Maryland, as to the mode of proof of demand and notice, was to place foreign and inland bills upon the same footing, and, as regarded inland bills and notes, to dispense with the necessity of adducing oral proof of demand and notice, by substituting therefor the protest of the notary; and the protest is sufficient in form, if it states in substance a demand and notice. Per Archer, C. J., in Barry Crowley, 4 Gill, 194.

In Michigan, notaries public are empowered to demand acceptance of foreign and inland bills of exchange and promissory notes, and to protest the same; and his certifi cate, under his hand and seal, of the official acts done by him is made presumptive evidence of the facts contained in it; but such certificate is not notice of non-acceptance or non-payment in any case in which a defendant shall annex to his plea an affidavit denying the fact of having received such notice. Compiled Laws of 1857, Vol. I. Chap. X. §§ 112, 113.

In Minnesota, it is made the duty of a notary, in protesting bills and notes, to give notice of protest, and to certify, in the instrument of protest, the time and manner of the service of such notice; and the protest of any notary public, appointed under the laws of that State, or the laws of any other State or Territory of the United States, is made prima facie evidence of the facts therein certified, provided that any party may contradict by other evidence such certificate. The record of the protest, or a certified copy of the record, is made evidence in the same way. Compiled Statutes of 1859, p. 134, §§ 5, 6.

In Indiana, the official certificate of a notary public, attested by his seal, are presumptive evidence of the facts therein stated, in cases where, by law, he is authorized to certify such facts; and he is authorized to do all such acts which, by common law and the custom of merchants, a notary is authorized to do. R. S. 1852, Vol. I. p. 378, c. 76, §§ 5. 6. Another statute in similar terms declares that the certificates or instruments purporting to be the official act of a notary public of that State, or of any other State or Territory of the United States, and purporting to be under the seal and signature of such notary, shall be received as presumptive evidence of the official character of such instrument, and of the facts therein set forth. Id., Vol. II. p 91, § 281. Under these statutes it is held that a protest of a promissory note, with a certificate of notice made by a notary of another State, is admissible evidence, without proof of its execution. Shanklin v. Cooper, 8 Blackf. 41. This decision was affirmed in Turner v. Rogers, 8 Ind. 139, where it was held, that, so far as presentment, demand of pay ment, and the transmitting of notice are concerned, the protest of a promissory note in such case is evidence; and the court say, that the universal practice of the commercial community indicates the propriety of this rule. So in case of a bill of exchange. Dickerson v. Turner, 12 Ind. 223.

In South Carolina, it is provided that, where the notary who has made protest of any