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in the case, this protest was held sufficient: the general question whether, if the acceptance had been in the usual form, a protest in London would have been sufficient, was left undecided. It appeared from the evidence of several witnesses, some of them notaries and others merchants, that where a foreign bill, drawn upon a merchant residing at Liverpool, payable in London, was refused acceptance by the drawee, the usage was to protest it for non-payment in London. Yet though this was the usage, the doubt arose after the decision in Mitchell &c. v. Baring &c. whether such usage would be sustained by the courts; and the statute of 2 and 3 Will. iv., ch. 98, was passed to remove the doubt. We propose, it will be perceived, to adopt the same statute in Virginia.
The section was adopted as proposed by the revisors, and will be found in the Code of Virginia at page 581. The revisors also proposed, and the legislature adopted, two additional sections, taken from the 6 & 7 Will. IV., p. 402, ch. 58, § 2. They are on the same page (581) of the Code; being § 5 and $6 of chapter 144.
§ 5. When a bill of exchange is accepted supra protest for honour, or has a reference thereon in case of need, it shall not be necessary to present such bill to such acceptor for honour, or to such referee, until the day following that on which such bill shall become due, and if the place of address on such bill of such acceptor for honour, or of such referee, shall be in any town or place other than in the town or place where such bill is therein made payable, then it shall not be necessary to forward such bill for presentment for payment to such acceptor for honour or referee, until the day following that on which such bill shall become due.
§ 6. If the day following that on which such bill shall become due shall happen to be a Sunday or Christmas day, or the first day of January, or fourth day of July, then it shall not be necessary to present it or forward it for presentment for payment to such acceptor for honour or referee until the first day afterwards, which is not Sunday or Christmas day, or the first day of January, or fourth day of July.
7. Of dishonoured instruments; which of them must be protested; as to which of them the protest is evidence of dis
Protest is not made until the close of the last day of grace, or after business hours, which in the United States, in the case of banks, is usually 3 o'clock. King v. Holmes, 1 Jones 459.
A foreign bill of exchange, not paid on the last of those days, ought immediately to be protested. Tassell &c. v. Lewis, 1 Ld. Raym. 743.
The law of England does not require a protest of an inland bill, 15 Wend. 428; or of a promissory note, 5 W. H. & G.
415. Though the holder of an inland bill could, under the custom of merchants, maintain an action on it before the statute of 9 & 10 W. 3, c. 17, yet until this statute there could be no protest of such a bill. The statute was very obscurely and badly penned. See Story on Bills, p. 558, 9, and 560, 468, and notes. It allowed a protest only of bills payable a certain number of days after dute, not of bills payable a certain number of days after sight, Leftley v. Mills, 4 T. R. 173; Tassell &c. v. Lewis, 1 Ld. Raym. 743; and it has been frequently a source of very considerable difficulty. Not being adapted to the usages of the present day, it was rarely observed or followed. Yet of inland bills and promissory notes, it became common to make protests-protests like those made in the case of foreign bills. And the holder was often disappointed at finding such protests decided not to be proof of dishonour of inland, however they might be of foreign bills. In Kentucky they were decided to be no proof of dishonour, either of inland bills or promissory notes. Taylor v. Bank of Illinois, 7 Mon. 577; Whiting v. Walker, 2 B. Monroe 262; Bank of U. S. v. Leathers, 10 Id. 65. And a statute was passed in 1837, making a notarial protest evidence of the fact of presentation and non-payment. 3 B. Monroe 11.
In the Code of Virginia (of 1849) there was intentionally omitted the act in 1 R. C. 1819, p. 483, § 2, taken from the statute of 9 & 10 W. 3, c. 17; and in place thereof a brief provision is made at p. 581, by the 7th section of chapter 144, applicable to all such instruments as this section declares (see ante, p. 172,) shall be deemed negotiable. The provision is that they "may, upon being dishonoured for non-acceptance or non-payment, be protested, and the protest be in such case evidence of dishonour, in like manner as in the case of a foreign bill of exchange."
8. When the formal protest may be drawn up.
Lord Kenyon and Lord Ellenborough concurred in opinion that when a bill had been duly presented and dishonoured, the notary who had noted it at the time, might at a future time draw up the protest in form. Chaters v. Bell &c. 4 Esp. 48. It has since been admitted, that when the fact recorded on a protest has taken place, and been duly entered by a notary in his book at the time of the transaction, it is sufficient if the formal protest be drawn up afterwards, though even after action brought. Bailey v. Dozier, 6 How. 29; 10 Com. Bench (1 J. Scott) 706.
But it has been contended that this rule is liable to an ex
ception in case of a payment supra protest for the honour of a party to the bill. There is no doubt that in such case there must be a declaration formally made before a notary, to give to the payment the quality of a payment for honour. There was a substantial omission of that declaration in Vandewall v. Tyrrell, Mood. & Malk. 87, 22 Eng. Com. Law Rep. 258. And the decision proceeded on that ground. 10 Com. Bench (J. Scott) 710. It is not regarded as preventing the general rule as to the time when the formal protest may be drawn up being applied to a case in which the bill was in fact duly protested, and the declaration that the payment was made for honour duly made before the notary. Geralopulo v. Weller, 10 Com. Bench (1 J. Scott) 712, 70 Eng. Com. Law Rep. 712, 3 Eng. Law & Eq. 515.
8. What facts should be set forth in the protest as to the dishonour; how far the protest or a copy of it is generally proof of those facts.
The protest of a bill should set forth the presentment, the demand of payment, and the answer of the drawee or acceptor. Nott's ex'or v. Beard, 16 Louis. 311, Musson v. Lake, 4 How. 274. The seal of office annexed by the notary to his certificate of the protest, is judicially taken notice of, Mullen v. Morris, 2 Barr 86; and the certificate under such seal is received in all courts as evidence of the protest in a foreign state, without any auxiliary support. Nelson, J. 15 Wend. 531; Lloyd v. McGarr, 3 Barr 482.
The want of a seal may sometimes be supplied. In place of a protest under such seal, there may be produced a sworn copy of it by the notary. Such evidence was admitted in Lloyd v. McGarr, as the best the nature of the case admitted of the notary testified that at the time of the protest he was a notary public, duly commissioned; that his term of office had expired; that no successor to him had been or could be appointed; and that the laws of the state gave him no authority to certify any document under his former notarial seal.
A court may, however, decline receiving other evidence of a protest than the protest itself, or a copy of it, except where the original and the record have been lost or destroyed. Chase v. Taylor, 4 Har. & Johus. 61.
The protest of a foreign bill, under a notarial seal, is prima facie, but not conclusive, evidence of the facts which it states as to the dishonour of the bill, to wit-the presentment, demand, refusal and protest; but these facts may be controverted by other evidence. Nelson v. Fotterall, 7 Leigh 180; Dickens
v. Beal, 10 Peters 582.
This rule applies to a bill drawn in one state on a person residing in another; for such a bill is a foreign bill. Townsley v. Sumrall, 2 Peters 170; Halliday v. McDougall &c. 20 Wend. 1; ante, p. 148. And since the protest is, to this extent, evidence of dishonour in the case of a foreign bill, it is, in like manner, evidence of dishonour in the case of any such promissory note, check, or inland bill, as is mentioned in the 7th section of chapter 144, of the Code of Virginia.
9. Notary's certificate, when founded on the acts of others, of less weight than when founded on his own act.
How far the duties of the office of notary can be performed by a clerk or deputy, is a question on which there was intimated, in the 7th edition of Chitty on Bills 217, an opinion, which led to the correspondence between Mr. Chitty and an association of notaries at Liverpool, that is given at large in the 8th edi. p. 493. It is a question on which the court of appeals of Virginia pronounced in the case of Nelson v. Fotterall, 7 Leigh 179, cited ante, p. 147, and on which decisions have been made in other states.
The court of appeals of Kentucky, considering that the effect of the notary's action in this respect must be determined by the local law under which he acts, has sustained such action, where it took place at New Orleans, and the evidence shewed it to be in conformity with well established custom and usage among the notaries there, the propriety of which had been sanctioned by judicial and professional opinions. McClane v. Fitch &c. 4 B. Monroe 600.
In a subsequent case, in which there was no proof of the existence of such custom, but in which there was proof by a witness that the presentment for payment was made, not by the notary himself, but by his clerk, the court held that there could be no recovery against the endorser. Chenowith & Co. v. Chamberlin, 6 B. Monroe 61.
If the notary's certificate state that he caused presentment to be made, the inference may be drawn that the presentment was by his clerk or some third person, as otherwise the phraseology would probably have been direct that he (the officer) made presentment, &c. The supreme court of New York, approving Mr. Chitty's opinion, refused to admit as evidence such a certificate; considering it to be a certificate as to facts of which the notary, impliedly at least, conceded, on the face of the instrument he had no personal or official knowledge. Onandaga Co. Bank v. Bates, 3 Hill 56.
OF NOTICE OF DISHONOUR; HOW GIVEN AND PROVED; HOW PROOF OF NOTICE DISPENSED WITH ON PROOF OF PROMISE TO PAY.
1. Notice to drawer of bill dispensed with where bill is accepted for his accommodation.
By the law of England, it was once a universal, and is still a general rule, that it is necessary to give, or use due diligence to give, notice of dishonour to other parties on the non-acceptance of a bill, or non-payment of a bill or note, by the drawee or maker. 16 M. & W. 748.
The first innovation on this rule was that made or recognized in Bickerdike v. Bollman, 1 T. R. 410, holding notice to the drawer not necessary if he had no effects in the drawee's hands from the time the bill was drawn till it became due; for, said Buller, J., if he had none, he had no right to draw and to expect payment; nor can he be injured by the non-payment or the want of notice. There was no difference in this respect between an inland and a foreign bill. Rogers v. Stephens, 2 T. R. 713. When in the case of a foreign bill it was thus ascertained to be unnecessary to prove notice, it was equally unnecessary to prove protest. Legge v. 1 horpe, 2 Camp. 310, 12 East 171.
The doctrine was carried no farther than this, that there need not be notice or protest where the drawer has no effects, and has no fair pretence for drawing, or where he draws without having effects intended to be applied in payment, and only for the purpose of raising money by discount for himself or the acceptor; which last was the case in Walwyn v. St Quintin, 1 Bos. & Pul. 654.
It was not long before the English judges gave expression to preference for the old rule, and regret that it had been broken in upon. Clegg v. Colton, 3 Bos. & Pul. 211. Lord Ellenborough declared his determination to resist the farther extension of the exemption, Orr &c. v. Maginnis, 7 East 361; saying, he met with continual instances of inconvenience resulting in practice from it. 2 Camp. 310, 12 East 176. He conceived the whole period must be looked to from the drawing of the bill till it becomes due, and that notice is requisite if the drawer has effects in the hands of the drawee at any time during that interval. Hammond &c. v. Dufrene, 3