Wagner v. Hall , 16 La. 563 ( 1840 )

Morphy, J.,

delivered the opinion of the court.

This case has been submitted on a bill of exceptions, which presents the only point made by the appellant: he objected below to the introduction of a protest offered in evidence by plaintiffs, on the ground that it appeared on its face to be neither the original nor the copy of an act, not being signed by two witnesses, nor certified by the notary to be a copy. The counsel has not referred us to, nor are we acquainted with any law requiring a notary to be attended by witnesses when he makes a demand or protest, or rendering the signatures of witnesses to such an instrument necessary. The statute of 1821, concerning bills of exchange, promissory notes, &c., requires two witnesses to attest the entry made by the notary in his.book, as to the manner in which notices to drawers and endorsers have been served or'forwarded. This relates exclusively to the new inode of proof then intended to he created for the delivery of notices, but has nothing to do with the protest itself. The form of this instrument, which ’s the same almost every where, requires no other signature than that of the notary or other officer who protests. In . . ,. r , fací, it is difficult to imagine any good reason why witnesses should affix their names to it, when they can have no perSonal knowledge of what it declares or contains. The protest drawn up by a notary, is not an authentic act within the meaning of article 2231, of the Louisiana Code. The authentic act which is there spoken of, is that which is received by the notary and signed by the parties themselves in presence of two witnesses and the notary. A protest is the official attestation of a notary, that he has demanded payment of a note at the request of the holder, and has received the answer set forth in the instrument, and this notarial declaration or protest receives credit, and makes proof in distant courts and places, by the law and usage of merchants.

There is no ind ¡t’is'not'nfeessary that a notarial protest should be signed ses. tWTh¡stninstrument requires no other signature than ¡rywho protests"

The plaintiffs have prayed for damages for the frivolous appeal, we would have allowed them, without noticing this point at all, had we not understood that this idea of the necessity of two subscribing witnesses to a protest has prevailed to a certain extent among the notaries and inferior courts, this may have induced the defendant to appeal.

It is, therefore, ordered, that the judgment of the Commercial Court be affirmed, with costs.