
    The London & River Plate Bank, Plaintiff, v. George Whitman Carr, Defendant.
    (Supreme Court, New York Special Term,
    April, 1907.)
    Negotiable instruments — Protest — Form and requisites of certificate — Absence of seal.
    A certificate of the protest of a foreign bill of exchange is no proof of the drawee’s refusal to accept or pay the bill, unless properly authenticated by the seal of the officer before whom the protest was made.
    In an action upon an alleged protested bill of exchange, drawn upon a resident of Brazil where the law provides that “bills of exchange must be protested before the proper protest officer, if there be such,” the certificates of protest offered were not authenticated under seal and it did not appear whether or not there was in fact any " proper protest officer ” nor whether according to the law of Brazil the officer before whom protest was made had a seal or was required to use one in taking protests, held, that the liability of the drawer of the bill was not established.
    Motion to set aside a verdict and for a new trial.
    William S. Gordon, for plaintiff.
    Edward A. Alexander, for defendant.
   Blanchard, J.

This is a motion to set aside the verdict and for a new trial. Action was brought by the plaintiff, who is the holder of three bills of exchange -against the defendant, "who drew the bills. The bills were drawn upon parties residing in Brazil. Certificates of protest which accompany the bills purport to show that the bills were protested in Brazil, but the officer before whom protest was made has in each case not affixed his seal to the protest. The certificates of protest describe the officer before whom the protests were made as “ Deputy, &c., of the City of Maceio, according to law,” &c. The law of Brazil, which has been put in evidence, provides that “ bills of exchange must be protested before the proper protest officer, if there be such, and, in case there should be none, before any notary public of the place, or before a sworn scrivener in default of such notary public or in case of inability of such notary public.” It does not appear whether or not there was in fact any “proper protest officer,” nor whether, according to the law of Brazil, the officer before whom protest was made had a seal or was required to use a seal in taking protests. According to the weight of authority a notarial seal renders a certificate of protest evidence in foreign countries, and in the absence of such a seal extraneous evidence must be given of the authority of the officer to take the protest. In Bank of Rochester v. Gray, 2 Hill, 227, the court stated the rule as follows: “And it would be going too far to say, contrary to what is believed to be the universal practice, that a protest, purporting to have been made by a notary, should be received as evidence, per se, without a seal. In The King v. The Scriveners Go. (10 Barn. & Chess. 518), Lord Tenterden said, ‘many documents pass before notaries, under their notarial seal, which gives effect to them, and renders them evidence in foreign courts.’ In Las Oaygas v. Larionda’s Syndics (4 Mart. Lou. Rep., 283, 285) Mathews, J., said: ‘In case of protested bills of exchange, the certificate of a notary public, authenticated by his seal of office, is received in the courts of the United States as full proof of the drawee’s refusal to accept or pay the bill ’ (Vid., 3 Kent’s Com., 93, 4th ed., note b). I am not aware of any case wherein the protest has been received as, in itself, such full proof without being authenticated by seal. It may be proof, perhaps, where the act first appears to have been done under a local law by an officer who has no official seal. (Caune v. Sagory, 4 Mart. Lou. Rep., 81.) But we are asked to sanction its reception as absolute proof, without anything appearing to excuse the want of such a formality. This we think cannot be done.” Also see 2 Daniel Keg. Inst. (3d ed.), § 946; Abbott Tr. Ev. (2d ed.), chap. 21, § 75. Satisfactory evidence of the authority of the officer before whom the protests were made in the present case is lacking in the important essentials hereinbefore indicated. It follows that no protests having been proved the liability of the defendant is not established, and accordingly the verdict for the plaintiff is set aside and a new trial ordered.

Ordered accordingly.  