§ 110. Contents and particulars of protest. The certificate of protest must contain certain essential particulars, in order to give the necessary evidence of the fact of dishonor. It is necessary that it contain: 1. The time of presentment; 2. The place of presentment; 3. The fact and manner of presentment; 4. The demand of payment; 5. The fact of dishonor; 6. The name of the party by whom presentment was made; 7. The name of the person to whom presentment was made.1 Usually, the facts regarding notice are embodied in it by the notary.

§ 111. The date of protest must expressly appear, for otherwise it does not appear whether the instrument was dishonored, and therefore entitled to protest; for if the protest state that the bill was "this day protested," and is dated on a day previous to, or after, the day of maturity, it is defective on its face. When the hour of the day is not stated, it will be presumed that the presentment and demand were made at the usual and proper business hours of the day.3

§ 112. As to the place of presentment.-When the bill or note is not payable at a particular place, it is not absolutely necessary to state at what place the presentment and demand

1 Daniel on Neg. Instruments, Sec. 950, and see Appendix for various forms of protest.

By the Civil Code of California, Sec. 3227, it is provided: "Protest must be made by an instrument in writing, giving a literal copy of the bill of exchange, with all that is written thereon, or annexing the original; stating the presentment, and the manner in which it was made; the presence or absence of the drawee as the case may be, the refusal to accept or to pay, or the inability of the drawee to give a binding acceptance; and in case of refusal the reason assigned, if any; and finally, protesting against all the parties to be charged." In Mississippi, by Act of April 5th, 1872, it is provided that the protest by a notary shall state: whether demand was made, of whom, when, and where, whether he presented such bill or note, whether notices were given, to whom, in what manner, where the same was mailed, and when and to whom, and where directed, and every other fact touching the same. Sec. 9. In New Jersey, notaries are required to note in a book a protest which is to show the time when, place where, and upon whom demand of payment was made, with a copy of the notice of non-payment, how served and the time when, and if sent by post, to whom the same was directed, at what place and when the same was put into such post-office, to which they are to sign their names, and when called upon in Court, to refer to such record. Nixon's Dig. p. 770.

2 Walmsley v. Acton, 44 Barb. 312.

3 Burbank v. Beach, 15 Barb. 326; De Wolf v. Murray, 2 Sandf. 166.

was made, if the fact appears that it was presented to the person entitled to pay it; but when it is made payable at a particular place, as at a bank, the certificate must show a presentment and demand at such place.1

§ 113. A presentment and demand for payment must appear, and are usually so stated in the certificate, which states that presentment of a certain instrument was made to a person, naming him, and payment demanded. It has been differently decided whether both these facts must appear, namely, the fact of presentment, and the demand of payment. It seems to me that a presentment at the time of maturity implies a demand for payment, and this should be inferred; but it has been decided that a mere statement of "presentment " is not in itself sufficient, there must appear further a demand. And it would also seem that a demand implies a presentment of the bill or note, and so it was decided in Louisiana'; but in the United States Supreme Court (by a divided Court, however) it was decided that a "demand" did not necessarily imply a "presentment."4 It will, therefore, be the proper and safer course to state in the certificate both presentment and demand.

§ 114. Other facts appearing by the certificate.—The fact of dishonor must appear either by a refusal of the party to whom presentment was made, or by his absence from the specified place or his regular place of business or residence, with no one to act for him to discharge his obligation. Without this appearing from the certificate, it cannot be regarded as sufficient. It is not material what words are used, provided the fact of a refusal or a failure to pay is apparent. So, if the certificate states that the reason of protest was the non-payment of the instrument, it is sufficient."

1 People's Bank v. Brooke, 31 Md. 7.

2 Nave v. Richardson, 36 Mo. 130; Farmers' Bank v. Allen, 18 Md. 475. See Farmers' Bank v. Bowie, 4 Md. 290.

8 Nott v. Beard, 16 La. An. 308.

4 Musson v. Lake, 4 How. 262.

When a protest states in substance a demand on the drawer and notice of non-payment, it is sufficient in point of form. Crowley v. Barry, 4 Gill, 294.

5 Arnold ". Kinloch, 50 Barb. 44; Littledale v. Maberry, 43 Me. 264.

6 Young v. Bennett, 7 Bush, 477.

The name of the party to whom presentment was made must distinctly appear, and when a demand should be made from a firm, it must appear that payment or acceptance was demanded from a person who was a member of the firm.1 When payable at a bank, it is only necessary to state that payment was demanded there without naming any particular person from whom payment was demanded.2

Usually, it is stated at whose instance the protest is made, and that this party looks to certain others for payment, costs of protest, and damages; but it has been decided that this is no essential part of the protest,3 though it is the better practice to conform to usage and state at whose request the protest was made.

The reasons are also stated for refusal; but in general this is not necessary, the fact of refusal being only essential. By the Civil Code of California, the reasons assigned for a refusal are required to be stated in the protest.4

§ 115. When protest unnecessary. When the drawer of a bill of exchange has failed to place funds in the hands of the drawee to meet it, and has no reasonable expectation that it will be met, a demand of payment and protest are unnecessary to hold him.5

In regard to this, a writer says: "The rule is often laid down in the language that the want of funds excusing the holder from giving notice; the statement of it in this form arising from the fact that, when the bill has been improvidently drawn, it turns out that there were no funds to meet it. But the converse proposition is not true, that whenever there are no funds provided to meet the bill, the drawer was improvident in drawing it. The drawee may have promised to accept or pay for the drawer's accommodation, or have come under an obligation founded on legal consideration to do so. And the true criterion of the right to require due demand and notice is not whether

1 Otsego Co. Bank v. Warren, 18 Barb. 290.

2 Hildeburn v. Turner, 6 How. U. S. 69.

8 Duckert v. Van Lilienthal, 11 Wis. 56.

4 Sec. 3227.

5 Harness v. Davies Co. Sav. Ass. 46 Mo.-357; Merchants' Bank v. Easley, 44

Mo. 286; Mehlberg v. Fisher, 24 Wis. 607.

the drawer had funds in the drawee's hands, but whether or not the drawer had a right to expect or require that the drawee would honor his bill." 1

Under the law of Indiana, a negotiable note, payable at a bank in that State, need not be protested for non-payment to hold the indorser; notice of a demand and non-payment is sufficient. So in Georgia, unless a note is payable at a chartered bank, no protest is necessary.3

IV. NOTICE OF PROTEST.

§ 116. Who must have notice. The maker of a bill and the indorsers must have notice of protest, in order to fix their liability to pay in case of default; and so likewise must the indorsers on a promissory note. It is regarded as one of the conditions of the contract entered into on the part of the maker and indorsers, that they shall be notified of any failure to pay by the party primarily liable; they only agree to pay in case a certain party does not. The law is very strict in regard to this notice. Thus, if a note has been indorsed to the holder in conditional payment of a debt, a failure to give the indorser notice will not only discharge the indorser upon the note, but it will also operate to discharge him as debtor upon the original consideration.1

§ 117. Manner of giving notice.-The notice may be verbal or written ;5 usually it is written, in order more effectually to be produced and recorded as evidence. Mere knowledge of

1 Daniel on Neg. Instruments, Sec. 1074.

2 Green v. Louthain, 49 Ind. 139.

3 Salmons v. Hoyt, 53 Geo. 493.

* Shipman v. Green, 1 Green, (N. J.) 251.

In Georgia, (Code, Sec. 2739) the indorsers of a bill or note, not to be negotiated at a chartered bank, are not entitled to notice of non-payment or nonacceptance, to charge them as indorsers. Frank v. Longstreet, 44 Ga. 63. There is a similar statute in Indiana. King v. Vance, 46 Ind. 246; Parkinson v. Finch, 45 Id. 629.

5 Boyd's Admr. v. City Sav. Bank, 15 Gratt. 501; Cuyler v. Stevens, 4 Wend. 566; Williams v. Bank of U. S. 2 Pet. 97; Housego v. Cowne, 2 M. & W. 348 ; Thompson v. Williams, 14 Cal. 160. By Civil Code of California, it is provided, Sec. 3143: "A notice of dishonor may be given in any form which describes the instrument with reasonable certainty, and substantially informs the party receiving it that the instrument has been dishonored."

dishonor does not constitute notice, for notice signifies more; it is to come from a certain party, with a demand on the other, showing that the latter is looked to for payment.1

A verbal notice must be given directly to the party, or must be sent by a messenger to his place of business or residence. Such a notice is more liberally construed than a written notice. Thus, where the holder's clerk told the drawer that the bill had been duly presented, and that the acceptor could not pay it, and the drawer replied that he would see the holder about it, this was held to be sufficient evidence to warrant the jury in finding that the fact of the dishonor of the bill was sufficiently communicated to the drawer.2

§ 118. Form of the notice.-Some essential particulars are required in the notice, the absence of which renders it worthless. When we consider what the notice is intended to show, namely, the fact of dishonor of a certain instrument, and that the party notified is looked to, by the one who gives notice, to make the obligation good, we can at once determine what essential qualities the notice must have. These may be summarized, and the notice will then contain the following elements: 1. Such a description of the bill or note as may apprise the party of the instrument dishonored. 2. That it has been dishonored, having been duly presented for acceptance or payment. 3. That the holder looks to the party notified for payment.*

§ 119. As to the description of the instrument.-The note or bill should be described in such terms as to show unmistakably what it is the date, the amount, the name of the drawer or maker. The law is satisfied if the description be such, under all the circumstances of the case, as to leave no reasonable doubt in the mind of the party what bill or note was referred to. The notice, therefore, may not exactly describe

1 Juniata Bank v. Hale, 16 S. & R. 157; Caunt v. Thompson, 7 C. B. 400.

2 Metcalfe v. Richardson, 11 C. B. 1011 (73 E. Com. L.).

3 In Gates v. Beecher, 60 N. Y. 184, it was held that a notary's certificate of the protest of a note, in the usual form, contains all the information which it is necessary to give an indorser, and sending him a copy of such certificate should, in the absence of any proof by him, be deemed a sufficient notice.

4 Thompson v. Williams, 14 Cal. 162.

5 Story on Notes, Sec. 349.

Shed v. Brett, 1 Pick. 401; Gilbert v. Dennis, 3 Met. 495; 1 Pars. N. & B. 472.