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OF NOTING AND PROTEST.
99. When a promissory note or bill of exchange has been dishonored by non-acceptance or non-payment, the holder may cause such dishonor to be noted by a notary public upon the instrument, or upon a paper attached thereto, or partly upon each.
Such note must be made within a reasonable time after dishonor, and must specify the date of dishonor, the reason, if any, assigned for such dishonor, or, if the instrument has not been expressly dishonored, the reason why the holder treats it as dishonored, and the notary's charges.
This chapter follows the English Law founded on the Statute 9 and 10 Will. III. c. 17, by omitting cheques as instruments which may be noted or protested. It is to be observed that with the exception, of Sec. 104 (relating to foreign bills), noting or protesting is not made compulsory by the chapter and no where in the Act with this one exception is a protest for non-payment absolutely necessary. As to acceptance and payment supra protest, see Chapter XI.
Noting is a minute made on the bill, or on a paper attached to it by a notary public at the time of its dishonor. Buller, J., in 1791 said, "Noting is unknown to the law as distinguished from the protest, it is merely a preliminary step to the protest and has grown into practice within these last few years. It is sometimes called "an incipient protest.' The advantages of noting are thus set out in Brooke "There is an obvious advan
Leftly v. Mills, 4 T. R. 170.
2 Brooke's office of notary, 4th ed., pp. 85, 142.
"tage in doing so, because as the noting is generally practised, "the circumstance of its not having been done, would tend to "render the other parties to the bill or note suspicious of irregu"larity, and more reluctant to pay it, and would almost certainly "tend to raise a prejudice in the minds of a jury, against the 'plaintiff, if upon a trial the due presentment should be dis"puted. By the noting, moreover, the presentment and dis"honor of the bill may with ease at any time be traced by "reference to the register or protest book preserved in the "notary's office, whilst another obvious advantage in noting is, "that a copy can be at any time obtained from the notary's office, if the original should be lost."1
As to the time within which the noting must be effected, (see post, notes to Sec. 105). The mere noting on the bill, even if it disclose the name of the notary in full, is not evidence of the presentment or of the dishonor of the bill. But it has been held that the presentation of a notary's ticket attached to a foreign bill, showing a charge for noting and protesting, is a sufficient notice of dishonor. 3
As to stamp, see Appendix.
100. When a promissory note or bill of exchange Protest. has been dishonored by non-acceptance or non-payment, the holder may, within a reasonable time, cause such dishonor to be noted and certified by a notary public. Such certificate is called a protest.
When the acceptor of a bill of exchange has Protest for become insolvent, or his credit has been publicly impeached, before the maturity of the bill, the holder may, within a reasonable time, cause a notary public to demand better security of the acceptor, and on its being refused may, within a reasonable time, cause such facts to be noted and certified as afore
1 See also Byles on Bills, 13th ed. p. 264. 2 Bomb 4 City Bank Co. v. Moonjee Horidoss, Bourke, Rep.
3 Viale v. Michael, 30 L. T., N. S. 463.
Ex-parte Wackerbath, 5 Ves.
said. Such certificate is called a protest for better security.
With reference to the protest of inland bills, Brooke says, "A protest of an inland bill ought not to be made unless there is some good reason for making it, such as where it happens that it becomes necessary to sue any of the parties to it who may happen to be abroad, or to attach property there; and in any such case a protest is necessary, as in case of a foreign bill." The reason given for this opinion, is that by the common law, interest can be recovered on a dishonored bill without reference to the protest,2 though the Statutes 3 & 4 Anne c. 9, s. 4, and 9 & 10, Will. III. c. 17, also give the same right where there is a protest, and the reasoning would also appear applicable to this act, as in Chapter VI relating to payment and interest, no reference is made to the necessity for a protest.
The only instances in which it is absolutely necessary that an inland bill should be protested, are
1st.-Where better security has been demanded.
2nd.—Where some person not a party liable on the instrument is willing to accept for honor.
3rd. Where it is intended to charge the acceptor for honor. 4th. Where some person is willing to pay the bill for the honor of the party liable, and wishes to retain a right to recover on the instrument from the party for whose honor he has paid.
It is only necessary here to make a few observations on the first of these cases, the others will be treated of in their proper places under Chapter XI.
The only real advantage to be derived from such a protest is that after it, the bill may be accepted for honor (Sec. 108), and the general one, that a protest contains a notice of the facts certified to by a responsible officer. It does not advance the holder's right to demand and recover payment, which must wait till the maturity of the bill. Omission to make the protest will not in any way affect the holder's rights against the drawer and indorsers. Brooke says of it.3 "This course is pursued with
Brooke's office of notary,
2 Windle v. Andrews, 2 B. & Ald. 696.
3 Brooke's office of notary, 4th ed. p. 89.
respect to foreign bills, and the advantage of it appears to be "that, by the laws of various foreign countries, the holders
may, after such a protest, attach the property or sue the "parties to them, or demand the deposit of better security, though no payment can be demanded upon it; whilst it also operates to notify to the drawers and indorsers, the state of "the acceptor's circumstances, so that they may endeavour to be 'prepared, and to provide in time for the payment of the bill." The holder (Sec. 8) is the only person entitled to cause a protest to be made, it must be made within a reasonable time, this period, within this section, is not included in the definition of reasonable time, but the English rule is, that when a bill has been duly noted, the formal protest' may be extended at any time. As to where the protest should be made nothing is said in the section, but the English rule is that the protest should be made where the dishonor occurs, and this of course will have to be determined by the rules for presentment contained in Chapter V, (see also post Sec. 103). Byles thus speaks of a protest. "It is a solemn declaration, written by the notary "under a fair copy of the bill, stating that payment or accept
ance has been demanded and refused, the reason if any "assigned, and that the bill is therefore protested."
As to stamp, see Appendix.
101. A protest under section one hundred must Contents of contain
(a) either the instrument itself, or a literal transcript of the instrument and of everything written or printed thereupon;
(b) the name of the person for whom and against whom the instrument has been protested;
(c) a statement that payment or acceptance, or better security, as the case may be, has been demanded of such person by the notary public; the terms
1 Geralopulo v. Wieler, 20 L. J. (C. P.) 105; S. C. 10 C. B. 690.
2 Mitchell v. Baring, 10 B. &
C. 4; S. C. 4 C. & P. 35.
Byles on Bills, 13th ed., p.
Notice of protest.
of his answer, if any, or a statement that he gave no answer, or that he could not be found;
(d) when the note or bill has been dishonored, the place and time of dishonor, and, when better security has been refused, the place and time of refusal;
(e) the subscription of the notary public making the protest;
(f) in the event of an acceptance for honor or of a payment for honor, the name of the person by whom, of the person for whom, and the manner in which, such acceptance or payment was offered and effected.
A noticeable feature in which the section differs from the form of protest under English Law, is that it only requires (cl. e.) the signature of the notary public making it, and makes no mention of the use of a seal. The general rule is that the protest should be in the form, conformable to the law of the country where it is made, and therefore a seal would not be necessary, though from information I have received from all parties of the country, the notaries in practice at the time the Act came into force do not deem it advisable to do away with the use of their official seal. A form of protest in use in British India, since the coming into force of the Act is to be found in the appendix. It is further to be observed that no provision is made herein for the protest of a lost bill or note, which is necessary according to English Law, and may be prepared from a copy.1
102. When a promissory note or bill of exchange is required by law to be protested, notice of such protest must be given instead of notice of dishonor, in the same manner and subject to the same conditions; but the notice may be given by the notary public who makes the protest.
1 Dehers v. Harriott, 1 Show. 163.