Orono Bank v. Wood , 49 Me. 26 ( 1860 )

The opinion of the Court was drawn up by

Cutting, J.

The defendant contends that he is not liable as indorser of the draft, because the notary, in his protest, certified generally, that he had " duly notified the drawer and indorser,” without stating what notice was given, how given, and, particularly, where such notice was addressed.

In Bradley v. Davis, 26 Maine, 45, this Court had under consideration the protest of a similar tenor, and Whitman, C. J., in the opinion, remarks, that "the statute of this State, c. 44, § 12, has provided, that such notarial certificate shall be legal evidence of the facts' stated in it, as to the notice given to the drawer or indorser, in any court of law. It is not said in the statute, that such certificate shall be conclusive evidence of those facts; and, it would seem, if it should be taken to be conclusive, that it ought to be specific, as to the mode in which the notices were given, by stating whether they were verbal or in writing, and, if in writing, whether the writing was delivered to the person or persons notified, or despatched by some other mode of conveyance ; and, if so, by what mode, and when sent, and to what place addressed. But, if it be considered that the certificate is defective, the necessary facts may be supplied aliunde.” In that case, the plaintiff unnecessarily produced the deposition of the notary, who testified, on his direct examination, that he had examined the protest, found it to be in his handwriting, aiid that the statements in it wore true; and the whole defence was subsequently elicited from answers to cross interrogatories. Hence, it is inferable from that decision, that the protest is sufficient prima facie, but not so conclusive as to exclude evidence either explanatory or contradictory.

In Ticonic Bank v. Btackpole, 41 Maine, 321, a construction was given to a notarial protest, similar in its character, so far as the question now under consideration becomes material. In defence, it appeared that the indorser resided in the same town where the note was payable and protested. Hence, it was contended that the kind of notice should have been certified, for if not verbal, but by a written communication through the post office, it would have been insufficient; but the Court held, that, under the circumstances, it was legally inferable ’that the notice was verbal; but, had the indorser proved that he resided at the time in another town, no reasonls perceived, why it would not have been equally inferable, by parity of reasoning, that the notice was in writing, and addressed, through the post office, to the party to be charged. So that the protest in the latter, like that .in the former case cited, was, pñma facie, sufficient to charge the indorser. But, the rule of law as to notice in this State is not material in this case, as the draft was payable in Philadelphia, and must, therefore, be governed by the law of Pennsylvania. By the Act., of Assembly, of that State, passed June 2d, 1815, the certificate is evidence of the facts therein certified, and, in the absence of contradictory proof, it is sufficient. Sherer v. Easton Bank, 9 Casey, 134. Consequently, according to .the agreement of the parties, the default is to stand, and damages are to be assessed by any Judge before whom the defendant may show any partial payments. In assessing which, he will allow, in addition to the contents of the bill and interest, damages at the rate of six per cent., for we consider the statute of 1841 and that of 1857 not to be materially variant, although the phraseology is somewhat different, but only for the purpose of condensation, latitude being substituted in the latter for enumerated States, eo nomine, in the former.

Tenney, C. J., Rice, Appleton, May and Kent, JJ., concurred.