
    Charles B. Richard and Emanuel Boas against Conrad Boller
    (Decided May 15th, 1876.)
    The certificate of a notary of presentment and protest of a foreign bill of exchange cannot be received in evidence unless it is under seal, and an imprint on the paper of the certificate of the design or stamp of the notary’s seal, but without any impression of the seal on the paper itself, or upon some adhesive substance attached to the paper, is not a seal.
    'The promise of the indorser of a bill of exchange to pay it after it is overdue is not a waiver of protest and notice, unless the indorser at the time of making the promise had notice of the failure to protest, and the burden of proof to show such notice is upon the party seeking to take advantage of the promise to pay.
    Appeal by defendant from a judgment of the Marine Court of the city of New York, entered on an order of the general term of that court affirming a judgment against the defendant rendered after a trial before a judge of that court, without a jury.
    This action was brought to recover against the defendant, as an indorser of a foreign bill of exchange drawn by Benno Speyer, at New York, upon Mohr & Speyer, in Berlin, Germany, and claimed to have been protested for non-acceptance, of which protest it was also claimed the defendant had due notice. The protest was attempted to be proved at the trial by a notarial certificate. Upon this certificate was imprinted, in blue ink, directly on the paper of the certificate, a design or stamp of a notarial seal, but the design of such seal was not impressed on the paper, nor upon any adhesive substance attached to the paper.
    It was proved that the plaintiffs having received said draft and alleged certificate of protest from abroad, sent the same to the defendant, who promised to come to the office of the plaintiff and pay the draft.
    
      Charles M. Hall, for appellant.
    
      Edward Salomon, for respondent.
   Yak Brunt, J.—

The first question to be considered upon this appeal is the sufficiency of the proof of the demand and protest of the draft, and this depends upon the question as to whether the design of the notarial seal printed on the certificate of protest is such a seal as would authorize the reading in evidence of the certificate of protest without further proof. It was not contended, upon the argument of this appeal, that the certificate of protest could be received in evidence unless sealed by the notary.

The whole course of legislation in this State shows that, in the absence of statutory provisions, a mere impression upon paper was not considered as a sufficient seal. In 1815, the Legislature enacted “ that the impression of the seal of any court by stamp should be a sufficient sealing in all eases where sealing is required.” In 1822, the Legislature also provided “ that it should be lawful for certain State officers to affix the proper seal by making an impression directly on the paper, which should be as valid as if made on a wafer or on wax.” In 1848, it further enacted “ that in all cases where a seal of any court or of any public officer shall be authorized or required by law, the same may be affixed by making an impression directly on the paper, as if made on a wafer or on wax; ” but the Legislature further says, that the foregoing provision shall not extend to private seals, which shall be made as heretofore on wafer, wax, or some similar substance.” In the same year it was enacted that the seal of any corporation authorized or required by law, “ may be affixed by making an impression directly upon the paper, which shall be as valid as if made on a wafer or on wax.”

The clear import of these enactments is to authorize the impression of the seal immediately upon the paper, without the intervention of any wafer, wax, or other similar substance; and that, prior to these enactments, it was necessary to the validity of the seal, that it should be impressed upon wafer, wax, or some other similar substance. The impression of the seal can be made directly upon the paper only when the design of the seal is impressed upon the paper itself, and does not require any other substance to exhibit it. In the case now under consideration, the seal being merely an imprint of ink upon the surface of the paper, is neither an impression made directly upon the paper, as required by our statutes, neither is it an impression upon a wafer, wax, or some other similar substance, as required by the common law.

Various authorities have been- cited by the counsel for the respective parties, but none of the cases seem to have any application to the question now under consideration, except the cases of The Bank of Rochester v. Gray (2 Hill, 221) and Ross v. Bedell (5 Duer, 462), and these cases sustain the view which I have already suggested.

It seems, therefore, that it was error to admit the certificate of protest, it not being under seal; and the judgment must be reversed, unless the defendant is bound by the promise which he made to pay after the maturity of the draft.

Parsons on Notes and Bills (vol. I, p. 595) lays down the rule that a promise to pay after maturity, with full knowledge of laches, is binding upon the party promising, without further proof of demand, protest, or notice ; ” and, at p. 601, he says, “ a mere promise to pay is not sufficient. The plaintiff in each ■case must go further and prove knowledge on the part of the party promising of the facts.”

The certificate of protest being excluded from consideration because of the want of a proper seal, there is no evidence in the case that the draft was ever presented for acceptance, or protested for non-acceptance. In considering, therefore, the defendant’s promise to pay, we must, therefore, assume that the case is presented without any attempt to prove a demand or protest. A failure to make' a demand would undoubtedly be laches upon- the part of the plaintiffs, and a knowledge of such laches must be had by the defendant at the time of making the promise, in order that it should be binding. The evidence in this case shows not only that the defendant had no knowledge of the failure of the plaintiffs to make a demand, but, on the contrary thereof, the promise was made at a time when he supposed that a proper demand and protest of the draft had been made, and that a proper notice thereof was being given to him. It is clear, therefore, that the defendant had not full knowledge of the facts at the time of making the promise, and the same is not binding upon him.

The judgment must be reversed, and a new trial ordered, with costs to abide the event.

Bobinson, J., concurred.

Judgment reversed.  