Definition
The preliminary act performed by a notary public upon dishonor of a bill of exchange — occurring at the time of presentment or at a seasonable hour on the same day — in which the notary records on the bill itself, on an attached ticket, or in a registry book: the notary's initials, the date of presentment, the refusal of acceptance or payment, any reason given for that refusal, and the notary's charges. Noting is the precursor to formal protest and preserves the record of dishonor before the fuller protest document is prepared.
Noting is not itself a protest. It is the preparatory step that allows a protest to be drawn up afterward, often on the same or following day. Where the noting has been made, the protest may be extended at any subsequent time, relating back to the date of the noting.
Common Language
Modern common usage (Wiktionary): Present participle and gerund of "note" — the act of observing, marking down, or calling attention to something.
Historical common usage (Webster's 1913): To notice; to observe; to record in writing; to annotate.
The legal meaning is narrower and more technical than the ordinary sense. In commercial paper law, noting is not merely the act of writing something down — it is a specific, regulated procedure performed by a notary public under defined time constraints, with defined contents, in the context of a dishonored bill of exchange. A researcher who reads "noting" in a 19th-century commercial law context should not treat it as a generic reference to recordkeeping.
Common Confusion
Noting and protest are routinely conflated in older secondary sources and sometimes in the primary sources themselves. They are distinct steps. Noting is the immediate, informal minute made at the time of dishonor. Protest is the formal notarial certificate — drawn from the noting — attesting to dishonor and giving rise to secondary liability on the bill. Bouvier makes the distinction explicit: the noting is not indispensable, being only a part of the process leading to protest. A researcher who finds a source saying noting was "dispensed with" should not conclude that protest was also dispensed with; the two may have different legal consequences under applicable law.
Why It Matters in Research
Noting appears almost exclusively in historical commercial paper materials — bills of exchange, promissory notes, and negotiable instruments doctrine — and is largely obsolete as a term of art in modern American practice, having been absorbed into the broader framework of dishonor and protest under the Uniform Commercial Code. Researchers working in pre-UCC materials, English commercial law sources, or 19th-century American case law will encounter noting regularly and must understand it as a procedural step with timing requirements.
The timing element is critical in older cases. Whether a notary acted at a "seasonable hour" on the day of dishonor, or whether noting was delayed to the following day, could affect the validity of the protest and the liability of indorsers and drawers. Cases turning on defective noting — wrong date, missing initials, failure to record the reason for refusal — appear throughout 19th-century reports and require the researcher to understand exactly what a valid noting required.
In Scottish and English law, noting retained a more formal and indispensable character than in American practice, where courts more frequently excused technical defects. Researchers comparing trans-Atlantic commercial law sources should be attentive to this divergence; an English treatise's statement that noting is mandatory may not accurately describe American practice of the same period.
The Anderson's entry is fragmentary as reproduced and should not be relied upon for substantive content on this term. Black's (both editions) and Bouvier provide the most complete accounts.
Historical Dictionary Support
Black's Law Dictionary (1st and 2nd editions) are in close agreement, describing noting as the preliminary minute made on the bill or in the notary's registry at the time of presentment, specifying the required components: initials, date, refusal, reason if any, and charges. The entries are nearly identical across editions, suggesting no meaningful doctrinal evolution between them on this point.
Bouvier adds the important qualification that noting is not indispensable — it is part of the protest process but not the protest itself. This is the most analytically useful formulation among the shelf sources for understanding the legal stakes of a defective noting.
Anderson's entry is unhelpfully truncated in the available text and cross-references unrelated terms; it contributes nothing additional to the definition.
None of the historical sources address how noting doctrine was affected by the negotiable instruments codification movement of the late 19th and early 20th centuries, or how the term was ultimately superseded in American practice by UCC Article 3 terminology. Researchers tracing the doctrine into the 20th century will need to go beyond the shelf dictionaries.
Jurisdictional Note
English and Scottish commercial law traditionally treated noting as a more formal requirement than American courts, which showed greater willingness to excuse technical deficiencies in protest proceedings. Under UCC Article 3, as adopted across American jurisdictions, the term "noting" does not appear; the operative concepts are presentment, dishonor, and protest. Researchers working in Louisiana or in jurisdictions that long retained civil law commercial traditions should verify whether local practice tracked the common law noting requirement or diverged.
Encyclopedia Cross-Reference
The Law Mind Contracts & Commercial Law Encyclopedia: Negotiable Instruments — Types (Notes, Drafts, Checks, Certificates of Deposit)
The Law Mind Property Law Encyclopedia: Mortgages — Promissory Note and Deed of Trust