Manouvrier v. Marvel , 15 La. Ann. 396 ( 1860 )

Vooruies, J.

This case presents a question of fact on tho merits, — the truth or falsity of the Notary’s certificate of protest.

The certificate states that the notice of, protest to the endorser, who is defendant in this cause, was served by delivering the notice “ to his nephew in his domicil, he not being in."

Josiah Marvel, the only nephew of the defendant, as stated in the record, denies having received the notice of protest. And it appears that Scriber, the only white person living at the time in the house, says that no document of tho kind was ever served upon him. His testimony further discloses that there was a Gorman living on the defendant’s premises about that time.

Although the above evidence is positive as to the fact that the notice was not served upon the defendant’s nephew, yet, it does not strictly follow that, admitting the error in this respect, the notice was not served at all at the domicil, upon some one who happened to be there. The deputy Notary, who made tho service, says : “ I do not recollect the individual, but I saw some one in the house; and I think he said he was tho nephew of Marvel; and I reported the same to Mr. Cenas. I was very often in the habit of making my reports directly to Mr. Cenas. It was between nine and 11 or 12 o’clock when I served the notice.”

The only uncertainty which the evidence leaves in the matter is not as to the fact of notice having been made at tho domicil, but as to the person to whom the paper was handed.

The defendant, however, contends that the deputy Notary’s evidence was inadmissible to contradict or explain the certificate of protest; but, inasmuch as the verity of this document was assailed, it was perfectly legitimate to use this witness’ statements to rebut the charge.

It is, therefore, ordered and decreed, that tho judgment of the District Court be affirmed, with costs.

Land, J., absent.