Barnard v. Planters' Bank

stated the case, and delivered the opinion of the court.

The only question for this court is, whether this testimony was properly permitted to go to the jury. At common law, any one is authorised to make a protest for the non-acceptance or non-payment of a bill where one is necessary, and when made in the presence of two witnesses, according to the usage of merchants, it is as much evidence of the dishonor of the bill, as if done by a notary. It may be, and now usually is done by a notary public; but it is not on that account, an official act. The protest of a foreign bill of exchange is evidence of a demand upon the drawee, but it has become so, only by the sanction of commercial usage, and the universal convenience of mankind. It is evidence of the demand and non-payment, however, and nothing more. The act of 1822 of this state makes it necessary to protest inland bills, and provides that the protest shall be made by a notary, or a justice of the peace. These are the only changes of the common law which it makes. It attaches no higher character to the protest than it possessed before. The notary is not required to give the notice necessary to charge the drawer or indorsers. He may do so, and upon proof that he has done so, the liability of the parties to the bill is fixed. To give the notice is not part of his official duty, and it must be proven in the usual way. The mention by a notary in his protest, of the manner of the presentment of a bill or note, or a certificate appended to it, stating the manner in which notices were served or forwarded, is therefore not evidence of such facts, per se. The act of 1822 was not designed to have that effect. The record of the notary is not made evidence by this statute, and it cannot be construed to afford to it any higher sane*105tion than it possessed by the common law. The general oath to discharge his duty, which the notary is required by law to make, has never been held to alter this rule. The certificate of the notary of the time and mode of serving notices cannot be received in evidence, under any provision of this act. The act of 1833 goes further, a.nd provides, that when any notary shall protest any bill or note, he shall make and certify on oath, a full and true record of what shall have been done thereon by him, in relation thereto, according to the facts, by noting thereon whether demand was made, of whom and when, when the requisite notices were served and on whom, where mailed, if such be the fact; when mailed; to whom and where directed, and every other fact, &c.

The oath, under the sanction of which, the record of the notary is made conclusive evidence of the facts it states by this statute, is a judicial oath, on which perjury may be assigned, and the statute provides that if any fact shall be falsely stated in his certificate, he shall, upon conviction, be held guilty of perjury, and suffer its penalties. This is deemed a satisfactory answer to the argument of the counsel for the bank, that this record is admissible, under the act of 1822, without the sanction of the particular oath, required by the act of 1833.

This statute was designed to remove a great inconvenience both to suitors and notaries, which was felt in bringing these officers into court, at a distance from the county of their residence ; and the great difficulty of procuring their personal attendance in such cases. By this act, they cannot be compelled to go beyond the county in which they reside. Lest, however, in any case mischief should be done by the ex parte evidence furnished by the notarial record, either party, who may apprehend danger on that account, may, in casé the notary resides out of the county, take his deposition, and he is in all cases subject to be called into court by subpoena, when the suit is pending in the county where he resides. The record of the notary is thus admissible where his personal attendance cannot be procured, or when the parties in the suit think proper to dispense with it. It is only conclusive evidence in the absence of the officer. The difference of the rule, thus created by the statute, from that of the common law is, that the record is conclusive evidence in the life-time of the *106notary, under the statute; whereas it is only evidence after his death, by the common law.

As the notary who made the record of protest andmemorandum of notices in this case is dead, it is contended that it is now admissible, under the rule just stated, and consequently it is immaterial whether it was or not certified on oath.

The rule is well settled, that an entry or memorandum, by one who knew the fact, and had no interest to falsify it, is admissible after his death, as evidence of that fact. 1st. Starkie’s Evid. 70. The case of Higham v. Ridgway, 10 East’s Rep. 109, was decidéd on this principle. In Price v. Lord Torrington, 1 Salk. 285, it appeared that, according to the usual course of the plaintiff’s dealings, the draymen came every night to the clerk of the brew-house and gave him an account of the beer delivered out, which he set dowñ in a book, to which the draymen set their hands; that the drayman was dead, and that the entry was in his handwriting : it was held good evidence of a delivery. This case has been repeatedly sanctioned by the courts in England and in this country. Thus in the case of Welsh v. Barrett, 15th Mass. Rep. 380, the memoranda of demands on the makers, and notices to the endorsers, of notes left in the bank for collection, made by a deceased messenger of the bank, were admitted as evidence of the demand and notice stated in them, upon proof, that they were in his hand-writing.

The principle "of these cases was fully adopted in the case of Nichols v. Webb, 8 Wheat. 326; where it was determined by the supreme court of the United States, to apply with much stronger force to the books of a deceased notary, which had been regularly kept, and accordingly in that case the memorandum, of the notary of the notice to the endorser, made upon the margin of the book, in which his protest was recorded, was held to be admissible to prove the facts it recited. It was an expansion of the rules of evidence, but it was essential to the ends of justice. It is secondary or inferior proof, but it was admitted because the higher and better proof was placed beyond the reach of human tribunals. In the nature of the case, it is the best evidence of which the fact is susceptible. The necessity of the thing therefore admits the testimony, in virtue of an exception from general rules, which has *107been sanctioned and adopted to prevent a failure of justice. These adjudications settle the rule, and it only remains for us to enquire whether the notarial record in this case falls within its provisions. It was insisted in the argument that it does not, for two reasons. 1. Because the memorandum does not point out with sufficient certainty, the manner of serving or forwarding the notices to the endorsers, or in other words, it does not state that the requisite notice was given to the plaintiff in error; and 2. Because it is not the memorandum of the notary; the same having been made by his clerk. The language of the memorandum is not as explicit as it should have been, and there might, very justly perhaps, be some diversity of opinion as to its true interpretation. The names of the several endorsers are set down under each other, and opposite the same are written either the name of the endorser, or some town or office. Opposite the name of the plaintiff’ in error, is written the word, “ office,” which might indicate, that the notice was sent to him there, or otherwise served at that place, for it was proven that he had an office in Natchez where the note was payable, and where it was protested. This evidence certainly conduced to prove that fact, and the construction of the memorandum was a question for the jury. It was their province to compare the several parts of it with each other, and pronounce the conclusion. The statement made in another and subsequent part' of the Trecord,. that all notices were duly served on the proper day, and before 9 o’clock in the morning, according to the designation above specified, might well justify the conclusion of the jury, that the notice stated, was given to the plaintiff at his office. But whether it did or not we cannot determine. It is sufficient that it legally conduced to that conclusion, and we cannot disturb the verdict on that ground.

In the case of Nichols v. Webb, before noticed, the memorandum attached to the original protest stated, that he, the notary, had “ duly notified all the endorsers.” Yet this with the other proofs were held to have been proper for the jury. It was therefore properly admitted, unless it is shown that.it was not the act of the notary himself. The witness, Munce, stated that the body of the protest was filled up by himself, except one line, but that the name of the notary is in the hand-writing of the notary him*108self. That the body of the memorandum was also made by the witness, except the words opposite the names of the endorsers, which are in the hand-writing of the notary. The notary also subscribed his name to it. Does the circumstance, that the entry in this case, is not entirely in the hand-writing of the notary, exclude it from the principle of the cases which have been noticed? In the case of Price v. Lord Torrington, the entry of the clerk was admitted, because the drayman had signed his name to. it. It was not admitted as the entry of the clerk, but of the drayman, and yet the drayman did not draw up the body of the entry, nor any part of it. He only signed his name to it. He being dead, it was received as his memorandum. It is true, that in that case, it was proven to have been usual for the clerk to make the entries, and the drayman to sign them, and yet the evidence would have been equally admissible, upon principle, if it had been shown, that the drayman sometimes made them himself. In this case it is not shown to have been the practice of the clerk to fill up the record, and yet his having done so cannot exclude it, if it was done with the sanction of the notary; for it would then be his act. The witness does not recollect whether he acted in this instance, by the direction of the notary; but we think this may very properly be inferred, from the fact, that the name of the notary, in his own hand-writing, is affixed to it; and the additional circumstance, that the record was kept by him, and found in his possession at his death. In the absence of express proof that the act of his clerk in this instance, was an unauthorised interference, we do not feel at liberty so to regard it. Nor do we feel authorised to presume that it was less the memorandum of the notary. He was here acting in his capacity of a public officer, who was sworn to do his duty, and' therefore the law places a confidence in his acts. In the case of Nichols v. Webb, the memoranda of the notices and other facts were frequently entered in the books of the notary by his daughter. Yet the memoranda in that case were received as the entries of the notary. In principle, this case does not differ from that.

The judgment of the court below must therefore be affirmed.