by his deputy or clerk, is governed by the same principles as the making of presentment and demand for acceptance or payment. It is usual for the notary to give notice to the indorsers of the dishonor of a promissory note, but this is not part of his official duty in making protest thereof." But when an instrument requires protest, as a foreign bill of exchange, and, by statute in some jurisdictions, a promissory note, or an inland bill, it is part of the notary's duty, in making protest, to give notice of the dishonor and protest of the instrument, in order to charge parties secondarily liable thereon. 14. Place Where and By Whom Protest Is Made. The rule is that a bill must be protested at the place where it is dishonored." Though usually the act of a notary, when a notary's services cannot be obtained at the place where the bill has been dishonored, protest, in England, may be made by any householder or substantial resident of the place in the presence of two witnesses;" in the United States, it may be made by any respectable resident in the presence of two or more credible witnesses;" and the certificate attesting the dishonor of the bill shall in all respects operate as if it were a formal protest of the bill." Where, as in Mississippi, a justice of the peace is authorized, by statute, to perform the functions and duties of a notary, his act of protest is equally valid with that of a notary." In Canada, when a notary's services cannot be obtained at the place where the bill is dishonored, any justice of the peace, resident in the place, may protest such bill and give all the necessary notices, and shall have all the necessary powers of a notary in respect thereto."" 15. What Instruments Must Be Protested. - Formal protest was established by the law merchant as a convenient 622 How. (U. S.) 66 (1844). 63 Eng. & Can. B. of E. Acts, Sec. 51 (6); N. Y. N. I. L., Sec. 264; Pa. N. I. L., Sec. 156. 64 Eng. B. of E. Act, Sec. 94. 85 N. Y. N. I. L., Sec. 262. 66 Eng. B. of E. Act, Sec. 94 (6); N. Y. N. I. L. 264. 672 How. (U. S.) 66 (1844). 68 Can. B. of E. Act, Sec. 93. and universal method of proving presentment and dishonor of foreign bills of exchange. Although originally applicable only to foreign bills, usage and statute have now generally extended protest to inland bills, notes, and checks." When a foreign bill of exchange has been dishonored, it must be protested; otherwise, the drawer and indorsers are discharged. The protest of a foreign bill is necessary in order to furnish evidence of dishonor." In England and Canada, a dishonored inland bill, if the holder think fit, may be noted for non-acceptance or nonpayment, as the case may be;" in England, it shall not be necessary to note or protest any such bill in order to preserve the recourse against the drawer or indorser." But in Canada, except in the Province of Quebec, the statutory provision is: It shall not be necessary to note or protest any such bill in order to preserve the recourse against the drawer or indorser. However, in case of a bill drawn upon any person in the Province of Quebec, or payable or accepted at any place therein, in default of protest for non-acceptance or non-payment, as the case may be, and of notice thereof, the parties liable on the bill other than the acceptor are discharged." In England and Canada, where a bill does not appear, on the face, to be a foreign bill, protest thereof, in case of dishonor, is unnecessary." In the United States, by the negotiable instruments laws, where any negotiable instrument has been dishonored, it may be protested for nonacceptance or non-payment, as the case may be, but protest is not required, except in the case of foreign bills of exchange." 16. Protest for Better Security. - In England and Canada, where the acceptor of a bill becomes bankrupt or insolvent or suspends payment before it matures, the holder may cause the bill to be protested for better security against 69 Rand. Com. Paper, Sec. 1,137. 73 Can. B. of E. Act, Sec. 51. 74 Eng. & Can. B. of E. Acts. Sec. 51 (2). 75 N. Y. N. I. L., Sec. 189; Pa. N. I. L., Sec. 118. the drawer and indorsers." The only effect and advantage of such protest is to secure an acceptance for honor," and to give the drawer and indorsers opportunity to protect themselves against loss on reexchange and return of the bill. 17. When Protest Is Dispensed With. - Protest is dispensed with by any circumstances which would dispense with notice of dishonor. Delay in noting or protesting is excused when the 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."" 18. Waiver of Protest and of Notice. -A waiver is the relinquishment of a right. A drawer's or indorser's right to require presentment, protest, and notice may be dispensed with on his part, and where either of such parties do so, he is said to have waived presentment and notice of dishonor, or to have waived protest." In case a party liable on a negotiable instrument of any kind waive protest, his act is deemed to be a waiver, not only of formal protest, but also of presentment and notice of dishonor," since protest in its popular or general acceptation includes all the steps necessary to charge an indorser, as stated before, waiver of protest must be taken in the broadest sense, as meaning a waiver of all those formalities."1 A waiver may be express or implied. It may be stated in direct or positive terms, or it may arise by implication from the acts of the party making it; in the latter case, it is called an implied waiver and may result from any promise to pay the instrument. It must be made by a party entitled to take advantage of the formalities waived; and it must be given to some one interested and connected with the paper, 76 Eng. & Can. B. of E. Acts, Sec. 51 (5). 77 Chal. Dig. Eng. B. of E. Act (5th Ed.), p. 173; Chit. Bills 385. 78 Eng. & Can. B. of E. Acts, Sec. 51 (9); N. Y. N. I. L., Sec. 267; Pa. N. I. L., Sec. 159; 12 East (Eng.) 171 (1810). 794 Misc. (N. Y.) 58 (1893). 80 N. Y. N. I. L., Sec. 182; Pa. N. I. L., Sec. 111. 81 29 Minn. 250 (1882). 83 the holder, most properly, or his agent; and the waiver inures to the benefit of parties prior to such holder and to subsequent holders."" A waiver by a member of a partnership firm, he being the agent of all, is a waiver by the firm; and even after dissolution of the firm, this rule will apply." It may be made before or after maturity of the instrument; one is as effectual as the other." It may be made when the instrument is executed or indorsed, which is the usual time, or at any time before it matures," even upon the very day of maturity, or, as just stated, after it has matured.87 86 Notice of dishonor may be waived either before the time of giving notice has arrived or after the omission to give due notice. It may be embodied in the instrument itself, and then it is binding upon all parties; or, it may be written. above the signature of an indorser, and then it binds him. only. A waiver of notice may be revoked before the time for giving notice has expired."" Where the drawer of a bill or the indorser of any instrument writes over his name, as an express stipulation, "notice of dishonor waived," it is an express waiver of notice; if inferred from an act of a party, as where the drawer of a bill tells the holder before it has matured that he has no fixed residence and that he will call in a few days to see if the acceptor has paid the bill, it is an implied waiver of notice." An acknowledgment of liability must be made with full knowledge of the facts, in order to operate as a waiver of notice of dishonor. So, where the indorser of a bill, which was refused payment at maturity, promises the holder to pay it, not knowing that it had been previously dishonored for non-acceptance, it is no waiver."1 828 Leigh (Va.) 180 (1837). 83 21 Mo. 46 (1855). 84 52 Iowa 391 (1879). 85 106 Pa. 531 (1884). 8664 Barb. (N. Y.) 468 (1873). 87 124 Mass. 209 (1878). 88 30 L. J. Ex. (Eng.) 170 (1861); N. Y. N I. L., Secs. 180, 181; Pa. N. I. L., Sees. 109, 110; 4 B. & Ald. (Eng.) 451 (1821). 8931 Am. R. 539 (1877). 904 Campb. (Eng.) 285 (1815); 5 M. & W. (Eng.) 418 (1839). 911 Cr. & M. (Eng.) 725 (1833); Chal. Dig. Eng. B. of E. Act (5th Ed.), p. 166. 92 19. Protest Certificate As Evidence. - Wherever, by the law merchant or by statute, protest of an instrument is necessary, the certificate of protest is prima facie evidence of the truth of the statements contained therein, such as presentment, dishonor, and notice of dishonor; it is prima facie evidence of its own authenticity and execution in due form." If the protest be by a notary and under seal, where a seal is necessary, it is prima facie evidence that it was duly made according to the laws of the place, and is sufficient to admit the protest in proof; but if not made by a notary, or 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 then existing." Until the facts contained in the certificate of protest are contradicted, it is conclusive evidence of those facts; that is, the certificate may be overturned by legal testimony that the statements therein contained are untrue." The rules governing notarial protest as evidence, which formerly, under the law merchant, applied only to foreign bills of exchange, apply now, by statutes in most of the United States, to inland bills and promissory notes." 92106 U. S. 546 (1882); 2 Pet. (U. S.) 179 (1829); 6 How. (U. S.) 1 (1848). 939 N. H. 558 (1838). 945 Baxt. (Tenn.) 579 (1875). 951 Bush (Ky.) 129 (1866); 76 Ill. 303 (1875); 36 S. W. Rep. 874 (1896). |