5th and 6th Wm. IV, c. 62. Act may be amended, &c. this present year, the year of our Lord one thousand eight hundred and thirty-five. XXIII. And be it further enacted, That this act may be amended, altered, or repealed by any act to be passed in this present session of Parliament. SCHEDULE REFERRED TO BY THE FOREGOING ACT. I, A. B., do solemnly and sincerely declare, That and I make this solemn Declaration, conscientiously believing the same to be true, and by virtue OBSERVATIONS AND OPINIONS UPON THE PRE No. 12. SENTMENT OF FOREIGN BILLS OF EXCHANGE. THE manner in which the presentment is made, of a foreign Observations and Opinions. bill, and the form of the protest of it on dishonour, are entirely regulated by usage and practice, and not by any act of Parliament. The custom which exists in England, of making the presentment of foreign bills by a notary, or by his clerk, before protesting them, has prevailed within the author's personal knowledge, for more than thirty-one years past; besides which, as will be afterwards shown, Mr. Lace, the senior Solicitor and Notary of Liverpool, a gentleman of most extensive and respectable practice, and possessing admirable knowledge of the Law Merchant, states", that he can speak to its having prevailed for fifty-five years and upwards; and it appears from a communication from the Society of London Notaries to Mr. Chitty, in the year 1829, that the above-mentioned practice had even then existed for upwards of a century. Indeed the author would not have been induced to have dwelt longer upon a matter so well known, had it not been for the circumstance of Mr. Justice Buller having been reported to have expressed himself, in a case in the year 1791, as if he thought it necessary for a notary to go in (1) Appendix, Infra, p. 82. (2) See also the communication from Mr. Venn, of London, Appendix, Infra, p. 81. Observations person to present a foreign bill. Even if that learned and Opinions. Judge did so express himself, such a dictum amounts to very little, and is not entitled to much weight, when it is borne in mind, that on that occasion the point was not then before the Court, and that the case(1) was one which arose not upon a foreign bill, but upon an inland one ; and also that from inquiries which have been carefully made, the result is, either that the report is inaccurate, or the learned Judge was not well informed as to the custom and practice respecting the presentment of foreign bills at that period. It has been ascertained, that (even in the comparatively limited state of commerce in 1791) according to the custom and practice in England, it was not then necessary, to cause the presentment to be made by a notary in person, but that it was considered sufficient, if done by his clerk. At present, owing to the widely-extended commerce of England, it is impracticable for notaries to conduct business without the assistance of clerks, and it would be as impossible for all the dishonoured bills to be presented by notaries in person, as by bankers or merchants. The doubt, if it was ever expressed, may have arisen from the learned Judge not being practically acquainted with the mode in which bankers and merchants act with respect to such bills. A most material circumstance must not be overlooked, viz. (1) Leftley v. Mills. (2) From a communication (vide Infra, p. 82,) received from Mr. Lace, the senior Solicitor and Notary of Liverpool, who was then in practice, it is clear that the custom, even at that time, was the reverse of that suggested in the alleged dictum of Mr. Justice Buller. See also the communication from Mr. Venn, of London, in the Appendix, Infra, p. 81. that every bill has already been presented, by the holder Observations and Opinions. or by some person in his employ, (whenever the drawee can be found, and there is any chance, however small, of obtaining acceptance or payment, as the case may be,) and has been dishonoured, before sending of it to the notary's office. No holder in his senses would cause a bill to be protested, and thereby incur some expense, and then send off the protest to a foreign country, for the purpose of trying to obtain payment there, if he could obtain the money from the drawee or acceptor in this kingdom. The protest is only a formal certificate that it has been dishonoured; the dishonour is the substance, the protest is the form. The second presentment by the notary or by his clerk is proper, and without it the former would not feel justified in granting the protest; but the drawer or indorser abroad cares nothing respecting the person who makes the presentment; that is a matter of perfect indifference to the drawer or indorser, for it is the non-payment which is the all-important point to him. It is idle to suppose that the protest is any safeguard to him, against irregularity in the presentment; the substantial and real security, which it affords to him is, that at the date of, and prior to the making of the protest, a previous presentment, and attempt to obtain acceptance, or payment, had been actually made by the holder, since it is evident that it would be contrary to his own interests to send the bill to a notary's office to be protested on that day, if he could obtain the acceptance of the drawee, or the amount of the bill from the acceptor. And it is not credible that any notary, for so paltry a fee, would Observations insert a false date of dishonour in the protest, and thereby and Opinions. run the risk of being struck off the Rolls for his misconduct; indeed, if he were base enough to do that, he would not hesitate to grant a protest of any other nature, however fraudulent. If any person were seriously to assert, that credit is given to the presentment by a notary because he is a public officer, an answer to that assertion readily presents itself, in the fact, that credit is given to the protest of a foreign bill of any respectable resident at any place, where there is not a notary: such a resident is not a public officer, yet his protest, under those circumstances, is by the custom of merchants quite as efficient as that of a notary, although the drawer or indorsers abroad can know nothing about there being no notary at the place, nor about the respectability of, or credit due to such resident, except what he chooses to say about himself in his protest. The commerce of this country is so vast and extensive, and the amount of foreign bills held by British merchants, and dishonoured from time to time, is so immense, especially during periods of commercial pressure, that no one but a banker or notary of extensive practice can form the slightest idea of it; and if ever there should happen to be a decision against the regularity of the existing custom respecting the presentment of bills, it is easy to foresee that it would be impossible in all cases to act upon such a decision, and that its effects would be most mischievous to numbers of British merchants, bankers, and others, who would be deprived of their property to an incalculable and ruinous amount, by the loss of their remedy against the |