Street v. Kellogg's Executors , 8 Miss. 342 ( 1843 )

Per Curiam.

Street, the plaintiff in error, was sued in the circuit court of Adams county, as indorser of a promissory note. To prove demand and notice, the notarial record of James K. Cook was introduced, which was objected to, because Cook was a citizen of said county. It appears from the protest that Cook was a citizen of Natchez, within the county of Adams, and this fact was also proven by a witness.

This notarial record was introduced, we suppose, under the act of 1833, which provides for the admissibility of such evidence in certain cases. The object of the law cannot be mistaken; it was designed to establish a rule of convenience, suggested by the difficulties which parties labored under who required the evidence of a notary, when at the same time his evidence might be required by another party in a different part of the state. Hence the act provides that wherever it should be necessary to have the evidence of a notary to testify concerning any protest, that the official act, certified under his hand and seal, shall be taken and received as evidence; and the same section concludes with these words: “and the said notary shall not be required by any subpcena to go beyond the limits of the county of his residence to give evidence, &c.” This language is but explanatory of the preceding part of the section; and why was it added, if he cannot be compelled to attend within the county? It is no answer to say that he is compelled to attend if subpoenaed; but if not subpoenaed, his record becomes evidence. His record is but secondary evidence; and if he is bound to attend a subpcena, his record cannot be used. It can only be used out of the county, because he is not bound to attend. But there is a proviso to the act which makes the matter perfectly plain. It says: “Provided, however, every notary public shall be, and they are hereby required to attend the courts of the counties of their respective residence, when thereto required by subpcena.” This proviso seems to have been inserted expressly with a view to obviate any doubt, and to make it perfectly plain how far the rule was to extend. It is a limitation on the rule established by the preceding part of the law. We can conceive no reason why they should be required to attend the courts of their counties if their records could be used as evidence, for that record is required to contain every thing necessary to hold all parties liable, or rather to contain all the facts, and we cannot perceive what object the legislature had in view by inserting the proviso, unless, as we have supposed, it is to operate as a limitation. The whole reason of the law fails when applied to the county of the notary’s residence. We therefore think the record ought to have been rejected.

Judgment reversed, and cause remanded.