Atwell v. Grant , 11 Md. 101 ( 1857 )

Eccleston, J.,

delivered the opinion of this court.

The first bill of exceptions shows that the defendant objected to the admissibility of the evidence offered on the part of the plaintiff, for the following reasons:

“ Because the note had not been stamped, as required by law, and because the affidavit was not such as the act of 1844, ch. 280, sec. 8, required to be made, and because the affidavit was made, not before the clerk of the city court of Baltimore, but before the clerk of the criminal court of Baltimore, and because the penalty was paid to the clerk of the criminal court of Baltimore city, and because said affidavit did not meet the requirements of the act of 1844, ch. 280, sec. 8.”

Under the 4th article and 16th sec. of the present Constitution, we are disposed to think the affidavit above alluded to, was properly made before the clerk of the criminal court of Baltimore; and that he had authority to receive the penalty. But if this be not so, still the decision below, overruling the objection to the plaintiff’s proof, cannot be reversed; because the act of 1844 has been repealed by the act of 1856, ch. 352, the 5th section of which provides, “That all bills, notes or bonds that have been drawn previous to the repeal of this act, and have not been stamped, shall be as good and valid as though they had been stamped, and all debts that have been created, where the proper vouchers are shown, shall be as valid in law as though the stamp act had never been passed.”

in regard to this repealing law, the court say, in Reynolds vs. Furlong, 10 Md. Rep., 321, “The passage of this act will relieve the case of all difficulty, upon a subsequent trial, upon the subject of the stamp, as now no stamp is necessary to render the note a valid instrument of evidence.”

The second bill of exceptions also presents a question in regard to the admissibility of evidence.

The defendant contends that the plaintiff had no right to offer evidence, by Johnson, the notary, that he served upon the defendant a copy of the notice of protest, because a call, at the time of trial, for the production of the same, alleged to have been given to the defendant, was the only notice served on him to produce it, which was not in due time. But it will be seen, by reference to 1 Greenlf. on Ev., sec. 561, that this objection to the proof offered, cannot be sustained. It is there said, that notice to produce is not necessary, “where the instrument to be proved is itself a notice, such as a notice to quit, or notice of the dishonor of a bill of exchange.”

The third bill of exceptions contains the following statement:

“And the defendant’s counsel proved, by Johnson, the notary public mentioned in the 2nd exception, that he did not make the demand himself, but that said demand was made by his clerk, Mr. Long, as Mr. Long informed him, and that it was the universal custom of notaries public to make such demands by their clerks, as it was impossible for a notary public to make every demand upon notes left with him, in person. The counsel for the defendant then asked said witness whether he had any record or paper in his possession which would show that Mr. Long had made said demand, and if he had, to produce it. The witness then produced said paper. The plaintiff’s counsel here asked the defendant’s counsel whether he meant to make said paper evidence in the case, to which he replied,, yes. The paper was then read in evidence, to wit:”

The paper, however, is omitted, and the exception proceeds by saying, “ The said witness further stated that said paper is in his own handwriting, and 'that the initials opposite the names of the maker and endorsers, respectively show who made the demand upon the maker, and who served the notices upon the endorsers, and that the paper showed that said demand upon the maker was made by his clerk, Mr. Long, and that the notices to the endorsers were served by him; and the witness further stated, that the said paper or memoranda were written by him either on the day the demand was made, or on the morning following, as he frequently was kept in his office until one or two o’clock in the morning; that he could not now recollect, without reference to the note in suit, or a copy, or the protest or other memoranda, the date and amount of said note, or when it was due, or the names or the order in which the names were put upon said note. Whereupon the defendant, by his counsel, prayed the court to instruct the jury as follows:

“1st. The defendant prays the court to instruct the jury that the plaintiff is not entitled to recover in this case, because there is no evidence of a demand having been made upon the drawer of the note in controversy, as required by law.

“2nd. That if the jury believe, from the evidence, that Mr. Johnson, the notary, did not make the demand upon the drawer of the note at its maturity, then there is no evidence of a demand having been made, and the plaintiff is not entitled to recover.”

The court refused to give the instructions, and the defendant excepted.

Thus it appears the defendant, himself, introduced evidence showing that it was the “universal custom of notaries public to make such demands by their clerks, as it was impossible for a notary public to make every demand upon notes left with him, in person:” that the demand^ upon the maker of the note in controversy had been made by the clerk of the notary, and that the notices to the endorsers were served by the clerk also.

Should it be conceded that if such proof had been offered by the plaintiff, and objected to by the defendant, it should have been rejected as inadmissible, still, when introduced by the defendant at the trial below, without objection from any quarter, it is evidence in the cause, and to be treated as such, in the appellate tribunal. In Farmers Bank of Maryland vs. Duvall, 7 G. & J., 95, it is said: “But reliance is placed upon the inadmissibility of the evidence to establish the notice, and time of notice, growing out of the want of proof that these entries were made by the cashier, in the line of his duty, as an officer of the bank. We, however, think that no such objection can now be taken to the evidence, for it was all admitted, without objection, in the court below, and having been so admitted, it is and ought to have the same effect as if admitted according to the strict rules of evidence.”

When the proof which has been given in regard to a demand by the clerk, is considered in connection with the evidence relative to the custom, as above stated, we cannot say the court below erred in refusing the defendant’s prayers, or either of them.

The first assumes there is no evidence of a sufficient demand upon the maker. The second insists that the demand could only be made by the notary, himself. Neither of the prayers raises any question in reference to whether the notices to the endorsers were served by the proper person.

Judgment affirmed.