Fleming v. Fulton , 7 Miss. 473 ( 1842 )

Mr. Justice Turner,

delivered the opinion of the court.

This was an action on the case , on a promissory note made by Fleming and Bennett, payable to the order of H. K. Moss, and by him and the other defendant indorsed to D. M. Fulton. The note was payable three years after date, dated 14 March, 1836, and payable at the Planters’ bank at Natchez. The cause was tried against all the defendants on the general issue, and a verdict rendered in favor of the plaintiff. A motion for a new trial was made and overruled, and a bill of exceptions taken. The defendants sued put this writ of error, and have assigned the following errors, viz:

1. The record does not show that the jury were sworn to try any issue between the parties, or that they were ever sworn in this cause at all.

2. The court erred in permitting the notarial record to be read in evidence.

3. The court erred in refusing the charges asked by the counsel for the defendant below.

4. The court erred in charging the jury in manner and form as set forth in the bill of exceptions.

5. The court erred in refusing a motion for a new trial.

As to the "first error assigned, the record states that, “.this day came the parties aforesaid, by their attorneys, whereupon came a good and lawful jury to try the issue joined, (giving their respective names) who being duly sworn, upon their oaths do say, we the jury find,” &c. By this it sufficiently appears that the jury were sworn to tiy the issue between these parties and in this cause.

As to the several other assignments of error, the counsel have very properly reduced them to two propositions.

First. Should the notarial record have been read to the jury?

Second. Ought the court to have given the instructions asked?

The first question is easily answered. The notarial record is made evidence by law. The sufficiency of the facts-set forth therein, to entitle the plaintiff to recover, is another matter.

The second question resolves itself into two propositions: first, should the court have. given the instructions. asked for; and secondly, were the instructions given, contrary to law.

The bill of exceptions sets forth the note sued on and the notarial certificate. The note was payable three years after date, was dated March 14, 1836, and. was protested for non-payment, on the 16th day of March, 1839, being Saturday. The third day of grace, it is admitted, would have been Sunday. It was therefore right, and according to universal usage, to make the demand on the day previous, and to forward the notices of protest on the next business day, which was Monday; and this was done." But it is contended, that in cases of promissory notes, four days of "grace are allowed. This has not been the usage in this state; and it would be dangerous, and extremely disastrous, now to change the rule, so as to apply to past transactions. Retrospective acts, even of the legislature, are generally considered with distrust, and almost equal to ex post facto laws. 1 How. 182; Davis v. Minor, 20, J. R. 372; 2 How. 784. But, the act of 1822, Rev. Code, p. 463, sec. 6 and 9, settles this matter. It provides that every foreign or inland bill of exchange which shall not be paid on or before the expiration of three days after it shall become due, may be protested, &c.; and the ninth section provides that the assignees of bills, bonds, notes, &c., may maintain an action against the person who shall have indorsed or assigned the same, as in -cases of -inland bills of exchange.

The instructions which the counsel of the defendants below asked- the court to give to the jury, ‘are as follows, viz: that to charge an indorser, to a note payable in bank, which had-regular business hours,-the party must show a presentment, demaiid, and refusal, during such hours, and that when a note fell due and-was protested for non-payment at two o’clock on Saturday evening, notice of such refusal and non-payment should be deposited in the office for the indorsers,' in time to go out by the mail of the day next succeeding the demand and refusal; which instructions the court refused to give, but charged the jury that the presentment, demand, and notice, as proved by the notarial record, read as aforesaid, was sufficient to charge the indorsers.. '

I consider that the instructions asked for were improper, because the evidence exhibited, did not warrant such a charge. The evidence was, that the Planters’ bank at Natchez had regular business hours, which were from ten o’clock A. M. till two o’clock P. M., after which the bank closed, though persons could 'get into the cashier’s room after that time. The notary certifies that on the 16th March, 1839, he went to the banking house of the Planters’ bank of the state of Mississippi in Natchez, and then and there presented for payment the. original note, &c.$ and demanded payment, &c., and was answered, by the teller of said bank, that the said note would not be paid.

The instructions called for had reference to a different state of facts from these. .The notary does not state the hour of the day, and it must be presumed, until the contrary appears, that the presentment was at the proper hour.

In the case reported in 5 Howard, it appeared that the demand was made before the expiration of the business hours of the bank, and that the note was withdrawn from the bank before that hour. This was considered not sufficient to constitute a good demand at bank; but in the case before us, no such evidence appears.

The residue of the instruction, as to.the time of depositing the notices in the post office, was also improper to. be given, inasmuch as the next day after the demand was Sunday.

The charge of the' court, that the presentment, demand, &c., as proved by the notarial record, was sufficient to charge the indorsers, is also complained of. But we see nothing exceptionable in it. The court did not instruct the jury to find for the plaintiff on the evidence before them, nor as to the weight of evidence. There was no contrariety of evidence before the jury, about which any dispute could arise, and the question was whether the evidence, as stated in the official record of the notary, was sufficient, in law, of demand, refusal and notice; and the court being called on for instructions, stated, and we think properly, that that evidence, uncontradicted, was sufficient to establish those facts. 5 Howard, 500,501.

The only remaining ground taken in argument of the counsel of the plaintiff in error, is, as to the sufficiency of the statement and affidavit of the notary, made and certified under the statute, because it was not made and certified on oath when the protest took place, to wit: on the same day.

This is the first time we have been called on to give this construction to this statute, and I have taken some time to reflect on it.

The act of 1833 was passed to promote the general convenience of suitors, notaries, &c. It requires the notary, when he shall protest any such instrument, to make and certify, on oath, a full and true record of what shall have been done thereon by him in relation thereto, according to the facts, by noting thereon whether the demand was made, notice given, to whom, &c. &c.; and when so made out and certified on oath, it shall have the same validity, &c. as if the notary were personally present in court. Statute Laws, 457.

In the first place, the fact that this record was not made immediately after the protest took place, does not appear. We have not the deposition of James K. Cook, the notary, in this, case, and he was not present to testify in court. We have only a certificate given by him, to the parties interested, of the facts set forth in his record, made out and sworn to at a day subsequent to the making up of his record. It seems that the notary made out and issued two notarial certificates — first, the usual one of the protest of the note; and secondly, that made under the statute, in which he states and certifies that he noted those facts so certified, then and there, to wit: on the 16th March, 1839, on his official record; and dates his certificate, of what he had so done, on the 20th April, 1839, and made oath to it on the same day.

This statute, being a remedial one, must receive a liberal, reasonable construction. Would it be reasonable that a notary public, when he sits down to record the acts done by him, in making demand, &c. of promissory notes, &c. one or many, should call in a justice of the peace to swear him as he makes his entries on his record? This would seem to me to be as unreasonable as it is unnecessary. The notary is a sworn officer. The law prescribes his duties, and what he does he does on oath. He malíes up his record of the acts done by him in each particular case. They are his own entries; and at his leisure — that is, when his time admits of so doing — he makes out his notarial certificate from his record, certifies and swears to it as the law directs, and hands over the note and the certificates to the parties interested. It is a general rule that the records of the official acts of public officers are evidence of themselves, and that duly certified copies thereof are admitted as evidence in courts of justice, even from other states. Our law, then, by prescribing this new duty to a notary public, has enacted nothing inconsistent with general principles. But that part of the act which requires an official record to be certified on oath, is a novelty.

Judgment affirmed.