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IMMEDIATELY upon the dishonour of a bill on due presentment, whether by non-acceptance or non-payment, a right of recourse against the drawer and indorsers accrues to the holder; but in order to avail himself of this right he must (unless excused) give due notice of dishonour, and, if the bill be a foreign bill, cause it to be protested, or, at all events, noted on the day it was dishonoured.

So, too, upon dishonour by non-payment of a note, notice of dishonour must be given to the indorsers. The duties of the holder of a dishonoured bill (or note), whether for non-acceptance or non-payment, being in fact identical, it will be convenient to consider them here. And inasmuch as the protest must be effected, or, at all events, commenced by noting on the very day of dishonour, it will be considered first.

When a foreign bill, appearing on its face to be such, is dishonoured by non-acceptance or partially accepted, or, not having been dishonoured by non-acceptance, is dishonoured by non-payment, it was and still is necessary, by the custom of merchants, in order to charge the drawer and indorsers, that the dishonour should be attested by a protest (a). For, by the law of most foreign nations (b), a protest is essential

(a) Gale v. Walsh, 5 T. R. 239; 2 R. R. 580; Rogers v. Stephens, 2 T. R. 713; 1 R. R. 605; Orr

v. Maginnis, 7 East, 359; 3
Smith, 328; Code, ss. 44, 51.
(b) Poth. 217.

Protest necessary on

foreign bills, and why.

CHAPTER
XIV.

By whom to be made.

Office of a notary.

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

(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

be necessary to do so in order to support an action in foreign countries against the maker or indorsers. Code, ss. 89 (4) and 94.

A bill protested for nonacceptance may (but apparently need not necessarily be) subsequently protested for non-payment. Sect. 51 (2) and (3).

(f) Code, s. 94; and Sched. I. (g) Ayliffe's Parergon, 385; 3 Burn's Eccl. Law, 1.

(h) And see 6 & 7 Vict. c. 90.

By 52 Vict. c. 10 (repealing 6 Geo. 4, c. 87, s. 20) ambassadors, etc., consuls, proconsuls, and consular agents in any foreign place 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 (/), 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).

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

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

(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).

() 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. 213; and 34 Vict. c. 17, Appendix.

(0) See Mitchell v. Baring, 10 B. & C. 4; M. & M. 381; 4 C. & P. 35; 34 R. R. 307.

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

test.

CHAPTER
XIV.

Stamp on protest.

Protest for better security.

Noting, what.

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 (7).

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 18. (§).

Besides the protest for non-acceptance and for nonpayment, 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 (f); 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 (†).

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 (y); 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 practice within these few years" (z). A bill, however, is often 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

(4) Code, s. 51 (7) and (8).
(r) Bentinck v. Dorrien, 6 East,
199; 2 Smith, R. 337; Sproat v.
Matthews, 1 T. R. 182.

(8) 54 & 55 Vict. c. 39, s. 90,
and sched. And formerly to a
duty of 18. on every other sheet
or piece of paper written on. 24
& 25 Vict. c. 91, s. 25.

(t) Anon., 1 Ld. Raym. 743; Mar. 110; Code, s. 51 (5). But

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XIV.

qualified to direct the holder to pursue the proper conduct CHAPTER 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 nonacceptance, 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 of Will. 3 (now repealed), and the fees of a notary for protesting were thereby fixed at 6., it has been said, that no more could be charged for noting (a), though it was usual to charge

more.

The Court would not allow the expense of noting to be recovered against the acceptor (c), unless it were laid as special damage in the declaration. But in actions brought since the 18 & 19 Vict. c. 67 (d), the expenses of noting may be recovered.

If the drawer reside abroad, a copy, or some memorial of Notice of the protest, ought to accompany the notice of dishonour (e). protest. 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 (f); 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 (g).

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

protest.

Protest is dispensed with by any circumstance which When protest would dispense with notice of dishonour, and so too delay excused.

(a) Leftley v. Mills, 4 T. R. 170; Chitty, 9th ed. 465; 2 R. R. 350.

(4) Vide Appendixa

(c) Hobbs v. Christmas, Sittings after Mms. T. 1831; Kendrick v. Lomas, 2 C. & J. 405; 2 Tyrw. 438; Rogers v. Hunt, 10 Exch. 474; Dando v. Boden, [1893] 1 Q. B. 318.

(d) Repealed. See now Code, 8. 57.

(e) Bayley, Poth. 148: Robins v. Gibson, 1 M. & S. 288; vide

infra, Chapter on Notice of Dis-
honour.

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

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

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

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