Bank at Decatur v. Hodges , 9 Ala. 631 ( 1846 )

GOLDTHWAITE, J.

1. The mistake in the protest of the bill for its non-acceptance is not in the description of it, but is in the certificate that notice of the non-acceptance was sent by mail to Chomason, instead of Thomason, if in point of fact the name is not set out precisely the same in the certificate's it is in the copy of the bill. The protestis a matter entirely independent of the certificate, and would be good if the latter was omitted. There was then, no reason to exclude the protest on this ground, and even if the mistake was in the description of the bill itself, the case of Moorman v. The Bank, 3 Porter, 353, seems to hold such a variance immaterial when the suit is against an indorser prior in liability to the one whose name is mistaken.

2. The mistake in the protest for non-payment, is in describing the date as the 26th instead of the 28th of January. We are not aware that parol proof is admissible to show a mistake in the protest. That is a formal document, essential to maintain the action against the drawers or indorsers of a foreign bill, and it is said should correspond verbatim in description with the bill. [Story on Bills, § 276.] Butthe drawing up or extending of the protest is the mere official act of the notary, which he may peform after the noting is actually made. He, upon presenting the bill, usually notes upon its face, or margin, the fact of demand, &c. and afterwards extends it in proper form. [Chalus v. Bell, 4 Esp. 48; Chitty on Bills, 499.]

When, therefore, a mistake is make in extending the notarial act, he may at any time afterwards correct it. It is not the extension of the protest, but the fact that it is so protested, which is the essential matter.

In reference to the protest for non-payment the court correctly excluded it, for the variance in the bill there described from that in suit.

3. The deposition of the notary was improperly rejected, because his evidence was proper to establish the sending of notice to the parties liable on the bill in default of non-acceptance or non-payment. It is said that the fact of protest cannot be proved independent of the notarial act, but as to this latter point we express no opinion. [Story on Bills, § 276.]

' Judgment reversed and remanded.