IV. Notaries Public. - "A notary was anciently a scribe that only took notes or minutes, and made short drafts of writings and other instruments, both public and private. But, at this day, we call him a notary public who confirms and attests the truth of any deeds or writings, in order to render the same authentic."2 This part of the business of a public notary must have been very necessary before the discovery of the art of printing, and when many of the first men in the State were unable to read or write. We find that some public documents have been attested by notaries in the following form: - "As my Lord Bishop is unable to write, I do hereby certify, that the above is his mark." These notaries were appointed by the Archbishop of Canterbury, and took an oath of fidelity on receiving their appointment. All instruments made by them were considered public instruments, and were received as evidence in the courts of law.
1 Bills are drawn usually at three, four, or six months. Bills for longer than six months may be quite legitimate if drawn under special circumstances - as collateral security for fixed advances, or for the payment of capital out of a firm to a retiring partner, for instance. The Bank of England discount no bills having over ninety-five days to run.
'Barns' "Ecclesiastical Law," vol. iii. page 1.
The business of a notary includes the making of wills, drawing up powers of attorney, bonds of arbitration, bills of sale, charter-parties, and attestations. The drawing of instruments of this description constitutes almost the sole employment of some few notaries; while the chief, indeed, the sole business of the majority, consists in noting and protesting bills of exchange. Some notaries are translators of languages, but more frequently they employ a foreigner for this purpose.
The difference between the noting and the protesting of a bill of exchange for non-payment, is this: In noting, the notary, after having presented the bill at the proper place, and demanded payment, attaches to it a small piece of paper, on which he writes the amount of his charge and the reason why the bill is not paid - such as "no effects," " no advice," "out; no orders," "will be paid to-morrow." etc. This piece of paper is called "the notary's ticket," and the writing on it is called "the notary's answer." Some notaries have their name and address printed on their tickets. The notary also places on the bottom part of the bill, in front, the initials of his name, the amount of his fee, and the date of the noting. The same form is used in noting a bill for non-acceptance.
The practice of noting bills of exchange is said to have taken its rise from the following circumstance: After the modern system of banking was established, and bills of exchange became numerous, it was customary for one of the clerks of the banking-house to act as a notary. If the bill had been presented in the morning and was not paid, he called in the evening to ask the reason of its non-payment, and he charged a small fee for this additional trouble. By degrees this practice became established, and, ultimately, a notary public was employed for the purpose.
A protest is a legal instrument, drawn on stamped paper, generally according to the following form:- -
On this day, , the day of , one thousand eight hundred and , I, A. B., Public
Notary, by legal authority, admitted and sworn, dwelling in the city of , did present for payment the original bill (a true copy whereof is within written), to a woman at , who replied, that said hill could not then he paid.
Wherefore, I, the said notary, do solemnly protest against the drawer and endorsers of the said bill, and all others therein concerned, for all exchange, re-exchange, losses, costs, interest and damages, suffered and to be suffered, for want of payment of said bill. This done in my office, the day and year aforesaid,
Which I attest,
A. B., Not. Pub.
Where a bill or note is required to be protested within a specified time, or before some further proceeding is taken, it is sufficient that the bill has been noted for protest before the expiration of the specified time, or the taking of the proceeding; the formal protest may be extended at any time after, as of the date of the noting.
If an action be brought upon a bill which has been only noted, it will be necessary to produce a witness in court, to prove that the bill was duly and properly presented for payment: but if the bill has been protested, the production of the protest will be sufficient evidence.
Although every foreign bill must be protested, yet it is not considered absolutely necessary that an inland bill should be either noted or protested, in order to sustain an action for the amount.1
When a bill is noted or protested, it must be noted on the day of its dishonour. The omission of the noting or protesting by the holder does not nullify his claims upon any of the antecedent parties, provided they received due notice of the dishonour.2
If a bill be refused acceptance by the drawee, and another party accept it for honour of the drawer or of an endorser, it must again be protested for non-payment by the drawee before an action can be sustained against the accepter.
The notary's charge for noting a bill within the site of the ancient walls of the city of London, is 1s. 6d. Beyond those limits the charges are 2s. 6d., 3s. 6d., 5s., and 6s. 6d., etc, according to the distance. The charge for protesting a bill under£20 is 5s. 6d. - from £20 to £100 it is 6s. 6d., - £100 to £500 it is 7s. 6d., - £500 to £2,000 it is 10s., and for every additional thousand, 1s. extra. The charges of notaries in London are not fixed by law, but are regulated by a society which they have established themselves, and which issues printed rules, a copy of which is given to each notary. The expenses of noting, or, when protest is necessary, and the protest has been extended, the expenses of protest may be recovered by the holder of a dishonoured bill from any party liable on the bill. A "case of need" is a reference for payment to a merchant or banker in London if the bill should not be paid by the party on whom it is drawn. This reference is made by writing on the back of the bill at bottom1 - "In case of need apply to Messrs. A. B. & Co." If, then, the bill should not be paid, Messrs. A. B. & Co. will pay it for honour of the endorser. The advantage of placing a case of need upon a bill is, that the party endorsing it receives it back sooner in case of non-payment. It also makes the bill more respectable, and secures its circulation. The notaries always observe these "cases or need," and after having noted the bill apply to the referee.