PROTEST. In Contracts. A notarial act, made for want of payment of a promissory note, or for want of acceptance or payment of a bill of exchange by a notary public, in which it is declared that all parties to such instruments will be held responsible to the holder for all damages, exchanges, re-ex change, etc.
A formal notarial certificate attesting the dishonor of a bill of exchange or promissory note. Benj. Chaim. Bills, art. 176.
There are two kinds of protest, namely, protest for non-acceptance, and protest for non-payment. There is also a species of pro test common in England, which is called protest for better security. A similar provi sion is to be found in the Negotiable Instru ments Act.
Protest for non-acceptance or non-payment, when duly made and accompanied by notice to all the parties to the bill or note, has the effect of making all of them responsible to the holder for the amount of the bill or note, together with damages, etc.; 3 Kent 63; Byles, Bills 273, 394; Chitty, Bills 278; Com. Dig. Merchant (F 8, 9, 10) ; Bac. Abr. Mer chant, etc. 7). Protest for better securi ty may be made when the acceptor of a bill fails, becomes insolvent, or in any other way gives the holder just reason to suppose it will not be paid. It seems to be of doubtful utility, except that it gives the drawer of a bill on a foreign country an opportunity of availing himself of any attachment law there in force ; 1 Ld. Raym. 745.
The protest is a formal paper signed and sealed by a notary wherein he certifies that on the day of its date he presented the origi nal bill attached thereunto, or a copy (a de scription of the bill is enough ; Dennistoun v. Stewart, 17 How. [U. S.] 606, 15 L. Ed. 228), to the acceptor, or the original note to the maker thereof, and demanded payment, or acceptance, which was refused, for rea sons given in the protest, and that thereupon he protests against the drawer and indorsers thereof for exchange, re-exchange, damages, costs, and interest. See Benj. Chaim. Bills, art. 176; 2 Ames, Bills & N. 863. It is usual, also, for the notary to serve notices of the protest on all the parties to the bill. The
notice contains a description of the bill, in cluding its date and amount, the fact of de mand and refusal, and that the holder looks to the person notified for payment. A waiv er of notice of protest by an accommodation endorser 18 months after maturity of the note with full knowledge that demand had not been made or notice of protest given, is binding without a new consideration; Burg ettstown Nat. Bk. v. Nill, 213 Pa. 456, 63 Atl. 186, 3 L. R. A. (N. S.) 1079, 110 Am. St. Rep. 554, 5 Ann. Cas. 476; notice of pro test to a drawer who executed an assign ment for the benefit of creditors is sufficient to bind the estate in the hands of the as signee; Moreland's Adm'r v. Bank, Ky. 577, 71 S. W. 520, 61 L. R. A. 900, 102 Am. St. Rep. 293.
Protest of foreign bills is proof of demand and refusal to pay or accept; Bryden v.
Taylor, 2 H. & J. (Md.) 399, 3 Am. Dec. 554 ; Nicholls v. Webb, 8 Wheat. (U. S.) 333, 5 L. Ed. 628. Protest is said to be part of the constitution of a foreign bill ; and the form is governed by the lex loci contractus ; Bank of Rochester v. Gray, 2 Hill (N. Y.) 227; Tickner v. Roberts, 11 La. 14, 30 Am. Dec. 706; Townsley v. Sumrall, 2 Pet. (U. S.) 179, 180, 7 L. Ed. 386. Story, Bills 176 (by the place where the protest is made ; Benj. Chaim. Bills, art. 180). A protest must be made by a notary public or other person authorized to act as such ; Benj. Chaim. Bills, art. 177; but it has been held that the duties of a notary cannot be performed by a clerk or deputy ; Ocean Nat. Bank v. Wil liams, 102 Mass. 141. Inland bills and prom issory notes need not be protested ; Bailey v. Dozier, 6 How. (U. S.) 23, 12 L. Ed. 328; see Presbrey v. Thomas, 1 App. D. C. 171; but the term protest, as applied to inland bills of exchange, includes only the steps necessary to charge the drawer and indors er; Wood River Bank v. Bank, 36 Neb. 744, 55 N. W. 239. Protest is unnecessary to fix the liability of an indorser on a non-negotia ble instrument ; Kampmann v. Williams, 70 Tex. 568, 8 S. W. 310.