from his residence abroad, would experience a difficulty in making proper inquiries on the subject, and be compelled to rely on the representations of the holder. 'It also,' observes a distinguished author [Byles on Bills, Sharswood's ed., 249, 395], '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 dishonor of a bill payable abroad:"" Dan. on Neg. Inst., sec. 927.

WHAT LAW GOVERNS FORM AND NECESSITY OF PROTEST.-The protest of a foreign bill of exchange is to be made at the time, in the manner, and by the persons prescribed in the place where the bill is payable: Rothschild v. Currie, 1 Q. B. 43; Todd v. Neal, 49 Ala. 266; McClane v. Fitch, 4 B. Mon. 599; Tickner v. Roberts, 11 La. 14; S. C., 30 Am. Dec. 706; Ellis v. Commercial Bank, 7 How. (Miss.) 294; Bank of Rochester v. Gray, 2 Hill, 227; Bowen v. Newell, 3 Kern. 290; Carter v. Union Bank, 7 Humph. 548; Raymond v. Holmes, 11 Tex. 54; Locke v. Huling, 24 Id. 311. But the necessity of making protest and the circumstances under which notice may be required or dispensed with are incidents of the original contract, which are governed by the law of the place where the bill is drawn: Raymond v. Holmes, 11 Tex. 54. "They constitute implied conditions, upon which the liability of the drawer is to attach, according to the lex loci contractus; and if the bill is negotiated, the like responsibility attaches upon each successive indorser, according to the law of the place of his indorsement; for each indorser is treated as a new drawer:" Story's Conf. L., sec. 360.

BY WHOM PROTEST SHOULD BE MADE.-By the custom of merchants, a protest of a bill of exchange is made by a notary public, but it is not indispensable that it should be made by a notary; in many cases it may be made by other functionaries: Burke v. McKay, 2 How. 66; S. C., Bigelow's Bills and Notes, 253. If there should be no notary at the place where the bill fell due, the holder may have it protested by any respectable inhabitant in the presence of two witnesses: Todd v. Neal, 49 Ala. 266; Read v. Bank of Kentucky, 1 Mon. 91; Bank of Kentucky v. Pursley, 3 T. B. Mon. 238. But a protest by a huissier (an officer of a tribunal of commerce in France, authorized by the commercial code of that country to make protests) will not be received in evidence without proof of the code: Chanoine v. Fowler, 3 Wend. 173. A notary may be incompetent, from the relation he holds towards one of the parties, to make a protest, and in such a case his protest would not charge the indorser. Thus where the holder is a bank, a protest by a notary who is a stockholder in the bank is not competent evidence to bind the indorser: Herkimer County Bank v. Cox, 21 Wend. 119; Bank v. Porter, 2 Watts, 141. In this last case the court said: "The protest of a notary is his deposition to the truth of facts contained in it; and his position in the cause is that of a witness deposing under the sanction of an official oath to which no temporal penalty is annexed; and can it be supposed that the legislature [which had passed an act allowing notarial protest to be read in evidence] intended to make him competent, when he would not be heard under the sanction of a judicial oath, for the violation of which he would be exposed to the pains and penal ties of perjury? The danger to be apprehended from such competency would be imminent, as the defendant being seldom able, from the nature and circumstances of the case, to disprove the protest but by the notary himself, would have no other resource than the testimony of a witness not only interested against him, but substantially a party to the cause. Besides, it is not very clear, in such circumstances, that the notary could be compelled to tes

tify." However, in the case of Read v. Bank of Kentucky, 1 Mon. 91, where the note was protested by a private person, in the presence of witnesses, it was held that the fact that the person protesting was a stockholder of the bank made no difference, as it was sufficient if the witnesses were disinterested. The fact that the notary by whom the bill was protested "was an officer of the rebel state of Alabama" is no ground of objection: Tyree v. Rives, 57 Ala. 173.

PROTEST OF FOREIGN BILLS OF EXCHANGE, AND HOW WAIVED.-By the custom of merchants in England, and wherever the law merchant prevails in the United States, a protest is only necessary in the case of foreign bills: Dan. on Neg. Inst., sec. 926, and cases cited. But a protest is part of the constitution of foreign bills, and it is generally necessary that they should be protested: Saloloms v. Stavely, 3 Doug. 298; Commercial Bank v. Barksdale, 36 Mo. 563; Fleming v. McClure, 2 Am. Dec. 671; Cullum v. Casey, 33 Id. 304. And if such a bill is accepted, and afterwards paid for honor, the holder is still bound to cause it to be protested for non-acceptance and non-payment: Lenox v. Leverett, 10 Mass. 1; Vanderwall v. Tyrrell, Moo. & M. 87. There are circumstances under which a protest is not necessary. If the drawer had no effects in the hands of the drawee at the time, had made no preparation to meet the bill, and had no reasonable grounds to suppose it would be honored, a protest is unnecessary to charge him: Legge v. Thorpe, 2 Camp. 310; S. C., 12 East, 171; Harness v. Davies County Savings Associa tion, 46 Mo. 357; Aborn v. Bosworth, 1 R. I. 401. So also where no protest had been made, but after the bill was due the drawer had promised to pay it, a protest will be presumed, as the drawer should have objected at the time that there was no protest, his subsequent promise admitting his liability and everything necessary to render him liable: Gibbon v. Coggon, 2 Camp. 188. And if the subsequent promise to pay was coupled with a letter written by the drawer's attorney, offering terms for the payment, it is a waiver of the objection of protest, even though the attorney swore that such offer was made without prejudice: Patterson v. Becher, 6 Moore, 319. Such a subsequent promise is evidence to support the allegation in the declaration of a due presentment for payment, and of protest: Greenway v. Hindley, 4 Camp. 52.

BILLS DRAWN IN ONE STATE ON RESIDENT OF ANOTHER are foreign bills of exchange, and protest is necessary. At one time there was considerable doubt as to the light in which such bills were to be viewed. And in Miller v. Hackley, 5 Johns. 375, it was decided that a bill drawn in New York on Charleston or on any place in the United States was an inland bill on which protest was unnecessary. But this decision has been reversed and it is now settled beyond question by decisions in the state and federal courts that such a bill is a foreign bill: Buckner v. Finley, 2 Pet. 586; Dickins v. Beal, 10 Id. 572; Bank of United States v. Daniel, 12 Id. 32; Donegan v. Wood, 49 Ala. 242; State Bank v. Hayes, 3 Ind. 400; Rice v. Hogan, 8 Dana, 133; Freeman's Bank v. Perkins, 18 Me. 292; Bank v. Stackpole, 41 Id. 301; Phonix Bank v. Hussey, 12 Pick. 483; Ocean Nat. Bank v. Williams, 102 Mass. 141; Atwater v. Streets, 1 Doug. (Mich.) 455; Miltenberger v. Spaulding, 33 Mo. 421; Carter v. Burley, 9 N. H. 558; Grafton Bank v. Moore, 14 Id. 142; Halliday v. McDougall, 20 Wend. 81; Commercial Bank v. Varnum, 46 N. Y. 269; S. C., 3 Lans. 86; Aborn v. Bosworth, 1 R. I. 401; Duncan v. Course, 1 Mill's Const. (S. C.) 100; Gardner v. Bank of Tennessee, 1 Swan, 420; Brown v. Fer. guson, 4 Leigh, 37; American Express Co. v. Dunlevy, 3 Am. L. Reg. (N. S.) 266. In Ohio, the statute relieves the holder of a bill of exchange drawn by

the inhabitant of one state on the inhabitant of another, of the necessity of protesting except for the purpose of claiming statutory damages: McMurchey v. Robinson, 10 Ohio, 497; Case v. Heffner, Id. 180.

PROTEST IS NOT NECESSARY ON INLAND BILLS OF EXCHANGE by the law merchant as it prevails in England and the American states: Borough v. Perkins, 1 Salk. 131; S. C., 2 Ld. Raym. 992; Windle v. Andrews, 2 Barn. & Ald. 696; Bailey v. Dozier, 6 How. 23; Leigh v. Lightfoot, 11 Ala. 935; Knott v. Venable, 42 Ala. 186; Turner v. Greenwood, 4 Eng. 44; McCord v. Curlee, 59 Ill. 221; Pannell v. Phillips, 55 Ga. 618; Bank of United States v. Leathers, 10 B. Mon. 64; Young v. Bennett, 7 Bush, 474; Gilman v. Lewis, 15 Me. 452; Brennan v. Lowry, 4 Daly, 253; Hubbard v. Troy, 2 Ired. L. 134; Thatcher v. Mills, 14 Tex. 13. By statute in England and most of the American states, inland bills of exchange are made protestable. The statute of 3 and 4 Wm. III., c. 17, provided for the protest of such bills, but did not take away the plaintiff's right of action in case of failure of such protest, but only took away his claim for interest and damages: Harris v. Benson, 2 Stra. 910; Brough v. Parkings, 2 Ld. Raym. 992; S. C., 1 Salk. 131. In the United States, the statutes providing for protest have received a similar construction, and a protest has been held necessary, only when the plaintiff sought to recover the statutory damages: Bailey v. Dozier, 6 How. 23; Wanger v. Tupper, 8 Id. 234; Leigh v. Lightfoot, 11 Ala. 935; Murry v. Clayborn, 2 Bibb, 300.

PROTEST OF PROMISSORY NOTES IS NOT NECESSARY by the law merchant: Platt v. Drake, 1 Doug. 296; Bonar v. Mitchell, 19 L. J. Exch. 302; Young ▼. Bryan, 6 Wheat. 146; Union Bank v. Hyde, Id. 172; Burke v. McKay, 2 How. 66; S. C., Bigelow's Bills and Notes, 253; Evans v. Gordon, 8 Port. 142; McFarland v. Pico, 8 Cal. 626; Green v. Louthain, 49 Ind. 139; Smith v. Ralaton, 1 Morris, 87; City Bank v. Cutter, 3 Pick. 414; Smith v. Gibbs, 2 Smed. & M. 479; Bowling v. Arthur, 34 Miss. 41; Hill v. Place, 7 Robt. 389; Parke v. Lowrie, 6 Watts & S. 507; Brown v. Philadelphia Bank, 6 Serg. & R. 484; Payne v. Winn, 2 Bay, 374; Hansbrough v. Gray, 3 Gratt. 356; Falk v. Lee, 22 Albany L. J. 157; Dunn v. Adams, 35 Am. Dec. 42; Sussex Bank v. Baldwin, 17 N. J. L. 487; and this rule prevails although the different parties reside in different states: Bay v. Church, 15 Conn. 15; Smith v. Little, 10 N. H. 526; Kirtland v. Wanger, 2 Duer, 278; although in Bank v. Stackpole, 41 Me. 302, it was held that a note payable in another state might be regarded as a foreign bill, so as to admit the protest as evidence. In some of the states, promissory notes are made protestable securities: Connolly v. Goodwin, 5 Cal. 220; Tevis v. Randall, 6 Id. 632; Bowling v. Arthur, 34 Miss. 41; Parke v. Lowrie, 6 Watts & S. 507; Parsons on Notes and Bills, vol. 1, p. 635, note t; although in the last case it was said that protest was not necessary. But in Read v. Bank of Kentucky, 1 Mon. 91, it was said that negotiable notes were placed in the rank of foreign bills of exchange.

CHECKS, CERTIFICATES OF DEPOSIT, BANK BILLS.-A protest is not necessary on the non-payment of a check: Griffin v. Kemp, 46 Ind. 172; Pollard v. Bowen, 57 Id. 232; Mutual Nat. Bank v. Rotgé, 28 La. Ann. 933; Jones v. Heiliger, 36 Wis. 149; and a check drawn by a bank in Mobile on a bank in New Orleans, in 1862, payable in currency, is not an instrument payable in money, and not negotiable, and protest is not necessary: Bank of Mobile v. Brown, 42 Ala. 108. But by statute in Maryland, a check drawn in the usual form may be protested, being embraced within the description of paper denominated inland bills of exchange: Moses v. Franklin Bank, 34 Md. 574. A certificate of deposit, payable to order, in currency, is not negotiable,

and protest for non-payment is not necessary to charge a person who writes his name across the back of such an instrument: Ford v. Mitchell, 15 Wis. 304. So also a protest is not necessary of bank bills on a failure of the bank to pay them on demand: Johnson v. Bank of Fulton, 29 Ga. 260.

PROTEST SHOULD SUFFICIENTLY DESIGNATE OR IDENTIFY BILL OR NOTE to which it refers. It is sufficient where a memorandum of the maker, the amount, the indorser, and the date of the protest is indorsed on it: Fulton v. Maccracken, 18 Md. 528; and mere susplusage in a protest does not vitiate it: Reapers' Bank v. Willard, 24 Ill. 439. Erasures in a protest do not per se destroy it; they are of more or less force, according to the time when made and the materiality of the part erased, and their effect is a matter for the determination of the jury. Hence an objection to a protest, because of erasures in it, without informing the court in what the erasures consisted, or how they affected the appearance, the objection being taken because there were erasures, can not be sustained: Tyree v. Rives, 57 Ala. 173. And if the copy of a bill indorsed on the protest differed in one or more words from that declared on and produced at the trial, the protest should notwithstanding be allowed to go before the jury, that the plaintiff may show by other testimony the identity of the copy with the original adduced: Leigh v. Lightfoot, 11 Ala. 935. Thus if a protest described the name of a subsequent indorser as "Pyron," when the bill sued on showed his name was "Byron," it will charge the prior indorser: Moorman v. Bank of Alabama, 3 Port. 353. So where the protest contained every material fact, except that the name of the acceptor was described as "Chas. Byrne" instead of "And. E. Byrne," this variance was held not to be fatal: Dennistoun v. Stewart, 17 How. 606. But a protest describing a bill as dated the twenty-sixth of January is not admissible as evidence to show protest of a bill dated the twenty-eighth of January: Bank at Decatur v. Hodges, 9 Ala. 631. An objection to the form of a protest, because of the failure of the notary to copy the note on the back, is not well taken, when it appears that a copy was prefixed to the protest, and reference was made in the protest itself to the copy so prefixed: Colms v. Bank of Tennessee, 4 Baxter, 422.

DAY WHEN PROTEST SHOULD BE MADE.-By the common law bills of exchange were entitled to days of grace. But this has been a matter of statutory regulation in most states, and the law of the place where the bill is payable determines whether days of grace are to be allowed; and if by that law the drawee is not entitled to days of grace, protest on the day when it is payable is valid: Bowen v. Newell, 3 Kern. 290. In Butler v. Play, 1 Mod. 27, it was said that if a bill be denied to be paid it must be protested in a reasonable time, and that was within a fortnight, and the debt would not be lost by not doing it on the day. And in Miller v. Hackley, 5 Johns. 375, where a bill was protested for non-acceptance, the court held that demand of payment and protest a day too late made no difference, as they were not essential where the liability of the party for non-acceptance had been already fixed. But the court decided in Tassell v. Lewis, 1 Ld. Raym. 743, that the protest should be made immediately. And it is now settled that a protest must be begun at least on the day when payment or acceptance is refused: Byles on Bills (Sharswood's notes, 7th ed.), 262; Dan. Neg. Inst., sec. 939; Chitty on Bills, 475. A protest for non-payment can not be made before the day it is payable: Donegan v. Wood, 49 Ala. 242; American Express Co. v. Dunlevy, 3 Am. L. Reg. (N. S.) 266; even though the drawee absconds before the day of payment, though in such a case he can protest it for better security: Mendez v. Carreroon, 1 Ld. Raym. 743. Should the day of payment

fall on a Sunday or a dies non juridicus, the demand for payment and protest may be made on the day previous: Doremus v. Burton, 5 Biss. 57; Chamberlain v. Maitland, 5 B. Mon. 448; Offut v. Stout, 4 J. J. Marsh. 333; Colms v. Bank of Tennessee, 4 Baxt. 422; Whaley v. Houston, 12 La. Ann. 585. In New Jersey, however, a note due on the thirtieth of May (which is a holiday in the state) is not payable till the following day, and if the thirtieth should happen on a Sunday, it would not be due till the following Tuesday, as the statute provides that in such a case Monday will be celebrated as the holiday: Hagerty v. Engle, 43 N. J. Law, 299.

PLACE WHERE PROTEST IS TO BE MADE.-Protest is to be made generally at the place where the dishonor occurs: Dan. Neg. Inst., sec. 935; Benj. Chalmers' Dig., art. 179. In Mitchell v. Baring, 4 Car. & P. 35; S. C., 10 Barn. & Cress. 4, it was held that it might be made at the place where the drawee resides though payable elsewhere. But if a bill of exchange is directed to a payee at a particular place, and is accepted by him without explanation or condition, such place is the place of payment though the drawee reside elsewhere, and a protest made at such city at the only place where the acceptor was known to transact business, is sufficient: Cox v. Nat. Bank, 19 Am. L. Reg., N. S., 519; S. C., 100 U. S. 704. If a bill is drawn on a person in one place, and is payable in another, then it has been held that the holder has his election to cause the bill to be protested for non-payment, either at the place of payment or at the place where the drawee resides. Thus where the bill was drawn on a person at Liverpool, payable in London, and the bill was duly presented at Liverpool for acceptance and protested, a protest for non-payment at Liverpool is sufficient: Mason v. Franklin, 3 Johns. 202. A similar rule was laid down by Chitty on Bills (13th Am. ed.), 374.

PRESENTMENT AND DEMAND.-The fact of presentment need not appear in the protest in haec verba, but the statement must ex vi termini import that when the notary made the demand he had the draft with him ready to be delivered up in case of payment: Bank of Vergennes v. Cameron, 7 Barb. 143; Musson ▼. Lake, 4 How. 262; Dupré v. Richard (principal case). Where the notary states that he went with the draft to the bank at which it was payable and demanded payment, this will be deemed equivalent to saying that he had it with him: Bank of Vergennes v. Cameron, supra; Nott v. Beard, 16 La. 308. And where the protest states that he went to the acceptor's place of business for payment, and found it closed, it will be inferred that he had the draft with him: Ross v. Bedell, 5 Duer, 462. But if the protest stated that the payment was demanded, but said nothing as to presentment, it is defective on its face: Smith v. Gibbs, 2 Smed. & M. 479. The protest should show to whom the bill was presented, and if it does not, it will not bind the indorser; as "for aught that appears it may have been presented to a stranger. The certificate should show presentment to the maker, or its legal equivalent, and this should not be left to intendment or presumption:" Duckert v. Von Lileinthal, 11 Wis. 56. In the absence of the drawer, the bill may be presented to his clerk or bookkeeper, and a protest reciting such a presentment is valid: Gardner v. Bank of Tennessee, 1 Swan, 420; Stainback v. Bank of Virginia, 11 Gratt. 26; Bradley v. Northern Bank of Alabama, 60 Ala. 252; Whaley v. Houston, 12 La. Ann. 585. And in Gardner v. Bank of Tennessee, it was said that in such a case it was not necessary to state in the body of the protest that the drawees were absent, as that would be presumed in favor of the protest. The presentment must of course be at the place where the bill is payable. The protest must show this; and if it merely states presentment without stating where, it is insufficient: People's Bank v. Brooke, 31 Md. 7: