Since a foreign bill of exchange must be protested if not paid, the demand, unless there be no anticipation of a refusal of acceptance or of payment, should be made by a notary public.1 The notary public is authorized to act in any of the ways in which an agent can be authorized, as pointed out in the case of domestic paper in the next section.2 The test of whether bills of exchange are foreign is whether the bill is drawn in a foreign country payable in this country or vice versa, or drawn in one state payable in another state.3 If the bill indicates where it is drawn or where payable, it is no less a foreign bill because all the parties reside in one state.4 But where the bill does not indicate the residence of either party or the place of payment, the fact may be shown5 in order to determine the nature of the bill. The rule requiring a notarial protest is satisfied by the protest of a defacto notary; but it has been said that a notary commissioned by a state government after its attempted secession from the Union was not a de facto notary;6 but the protest is not rendered invalid, the same court has held, by the fact that the notary is an officer of a seceding state.7 The necessity or the occasion for such decisions is not likely to recur. But the notary can act only in the district or county wherein his authority extends.8 If there is no notary at the place of payment, the bill may be protested by any substantial person in the presence of witnesses.9 Where the interest of a witness disqualifies him from testifying, a condition which no longer exists except in peculiar instances, such a disqualified witness is not a competent notary to protest a bill. Thus where a notary was a stockholder in a bank, it was held that he could not protest a bill owned by the bank.10 But the reason of the rule has ceased when interest ceases to disqualify a witness.11 In some localities it is still the rule that a so-called atheist or unbeliever in a future state of rewards and punishments is not a competent witness, and the reason of the rule would disqualify him as a notary. But the son of the holder may as a notary protest his father's bill.12 The demand of payment must be made by the same notary who protests the bill," and the rule seems to be that the clerk of the notary cannot make the demand and the notary protest the bill;14 nor can the notary make the protest upon the demand of some one else;15 and a protest by the clerk or the deputy of a notary is not good, even if the clerk or deputy presents the bill and makes the demand.16 But this rule is relaxed or denied by some courts as to a notary's clerk or deputy in large cities,17 and in other courts the custom is held to justify the clerk's or deputy's acting,18 and in other instances the notary is empowered by law to appoint a deputy.19 If the notary is authorized by law to appoint a deputy, a protest by the notary upon a demand by his deputy is sufficient.20 But certainly a protest by the clerk of a notary without the knowledge of or any authority from the notary is not valid.21 Under the statutes of many states protest is permitted as to domestic paper,22 and if the statute be held to mean protest by a notary, the demand should be made by the notary in order to prove protest by his certificate, unless a statute otherwise permit as to a clerk or deputy.23 The party who employs a notary as an agent either immediately or mediately through a collecting bank or collect ing agency, so far as the person sought to be charged is-concerned, must bear the result of the notary's inadequate demand,24 or want of diligence in making the demand, just as if he were a private individual.25 The rules as to the notary's action in making a demand of payment apply with equal force to the notary's presentation for acceptance, where such presentation is required.26

1 Union Bank v. Hyde, 6 Wheat. 572; Commercial Bank v. Varnum, 49 N. Y. 269; Cribbs v. Adams, 13 Gray, 597.

2 See Sec. 247, post, notes 7 to 12.

3 Bills drawn in one state payable in another are foreign bills (Towns-ley v. Sumrall, 2 Pet. 170; Bnckner v. Finley, 2 Pet. 586; U. S. Bank v. Daniels, 12 Pet. 82), although all the parties reside in the state. Mason v. Dousay, 35 I11. 424; Freeman's Bank v. Perkins, 18 Me. 292.

4 See the last two cases in the preceding note.

5 Harmon v. Wilson, 1 Duv. 222.

6 Todd v. Neal, 49 Ala. 266. But he may be an officer of a seceding state. Tyrie v. Rives, 57 Ala. 173.

7 See last note.

8 Gordon v. Dreux, 6 Rob. (La.) 399; Neeley v. Morris, 2 Head, 595.

9 Bank of Kentucky v. Pursley, 3 T. B. Mon. 238.

10 Herkimer Bank v. Cox, 21 Wend. 119; Bank v. Porter, 2 Watts, 141.

n Nelson v. First Nat. Bank, 6S Fed. R. 798 (C. C. A.); Morland v Citizens' Sav. Bank, 97 Ky. 211.

12 Eason v. Isbell, 42 Ala. 456; Waters v. Petrovic, 19 La. 584. The maker of the note may as a notary protest. Dykman v. Northridge, 153 N. Y. 662, 1 App. Div. 26.

13 Kentucky Commercial Bank v. Barksdale, 36 Ma 563

14 Kentucky Commercial Bank v. Barksdale, supra; Gawtry v.Doane, 51 N. Y. 84; Williamson v. Turner, 2 Bay, 410; Hunt v. Maybee, 7 N. Y. 266. See Bank of Kentucky v. Gary, 6 B. Mon. 626; McClane v. Fitch, 4 B. Mon. 599; Lee v. Buford, 4 Met. (Ky.) 7; Chew v. Read, 11 Smedes & M 182; Carter v. Union Bank, 7 Humph. 548 (statutes allowing notary to appoint deputy); so Bank of Louisiana v. Lawless, 3 La. Ann. 129.

15Marsaudet v. Jacobs, 6 Rob. (La.) 276; Shepherd v. Jonte, 14La. 246; Meise v. Newman, 76 Hun, 341.

16 Donegan v. Wood, 49 Ala. 242; Chenoweth v. Chamberlin, 6 B. Mon. 60, 8emble; Cribbs v. Adams, 13 Gray, 597; Ellis v. Commercial Bank, 7 How. (Miss.) 294; Commercial Bank v. Barksdale, 36 Mo. 563 (demand by notary's partner who was also a notary); Onondaga Bank v. Bates, 3 Hill, 53; Lock v. Huling, 24 Tex. 311. See Bank of Alexandria v. Wilson, 2 Cranch, C. C. 5. This decision may be put upon the ground that a demand not by a notary is good except where notary's demand is compulsory; provided the person making the demand testifies and reliance is not placed on the certificate.

17 Monroe v. Woodruff, 17 Md. 159; Sacrider v. Brown, 3 McLean, 481.

18 Miltenberger v. Spaulding, 33 Mo. 421. This creates a new species of public officer.

19 See last two cases in note 14.

20 See cases cited in note 14,

21 Sacrider v. Brown, 3 McLean, 481.

22 SeeSec. 310,post.

23 See notes 14 and 16, supra.