McKnight v. Lewis , 5 Barb. 681 ( 1849 )

By the Court, Sill, J.

By the revised statutes public notaries are authorized to demand payment of promissory notes, and to protest them for non-payment. (2 R. S. 283.) Section 45 of this statute declares, however, that neither such protest, nor any note thereof, made by any notary in this state, shall be evidence in any court in this state, except in the cases specified in the next section. One of the cases specified in the 46th section, is the death of the notary, and in this event his protest is, upon proof of his official seal and signature thereto, made presumptive evidence of the demand of payment as stated therein.. And section 47 declares that any note or memorandum made by the notary at the foot of the protest, or in any regular register of official acts, in his hand-writing or signed by him, shall [in case of the notary’s death) be presumptive evidence that notice of non-payment had been given at the time and in the manner therein stated.

The defendant’s counsel contends that by the service of the affidavit with the answer the certificate of the notary was rendered, by a statute enacted in 1833, ineffectual as evidence for any purpose. In this he is most clearly mistaken. By the reyised statutes, neither the protest of a promissory note, made by a notary in this state, nor his certificate, was evidence in any court in this state, except in cases where the personal attendance of the notary on the trial, or his testimony, could not be procured in any mode provided by law. In 1833, these protests and certificates under the official seal and signature of the notary, were declared presumptive evidence of the facts stated in them. (Laws of 1833, ch. 271, § 8.) But the same section containing this provision, declared that it should not apply to cases in which the defendant with his plea served an affidavit, like that served with the answer in this case.

The effect of serving such an affidavit is to deprive the plaintiff of the benefit of the certificate as evidence, so far as it derives its efficacy from the 8t,h section of chapter 271 of the laws of 1833; but it in no way impairs its force or competency as testimony under the revised statutes. The protest and certificate at its foot were therefore properly admitted as evidence, notwithstanding this objection, and proved presumptively, dishonor of the note, and notice to the defendant.

The next objection is that the official protest and certificate of the intestate were admitted in evidence in favor of the plaintiff, wl)o is his representative. At the time J. E. McKnight made this protest and memorandum of notice at its foot, he had no interest in the note. He had authority by law, and was competent in the particular case, to present and demand payment of it and to give the notice of refusal, and also to make officially the protest and memoranda which, in a certain contingency, the statute had declared presumptive evidence of such dishonor and notice. The certificate of an officer, when by law evidence for others, is .competent testimony for the officer himself, provided he was competent, at the time of making it, to act officially in the matter to which it relates. This doctrine is applied daily in cases of justices of the peace, sheriffs, constables and other .officers. No one will doubt that a .commissioner of deeds .or judge, who takes and certifies the acknowledgment of the execution of a deed conveying land, and who subsequently purchases the same land, may use his own certificate to prove the execution of the conveyance to his grantor.

Witnesses who have been examined and afterwards become interested, and are made parties in the same suit, have been permitted to read their depositions in their own favor, upon the ground that when they were examined they were not incompetent to testify in the cause as witnesses. (Goss v. Tracy, 1 P. Wms, 287; same case, 2 Vernon, 699. Haws v. Hand, 2 Atk. 615. Glynn v. The Bank of England, 2 Ves. sen. 42.) The application of this doctrine to this case shows that the protest and certificate were properly admitted in favor of the plaintiff, although he was the representative of the person who made them. The remaining point is made upon the notice of protest and non-payment of the note. The defendant’s counsel assuming, (whether by authority or not we need not now inquire,) that the notice produced is the same that the certificate of the notary proves to have been served, insists that it is, as a matter of law, insufficient to charge the defendant. W.e are upon this point referred to the unreported case of Dole v. Gold,^(a) decided by this court, and in which the defendant was discharged on account of the insufficiency of the notice. That case was unlike this. The notice there was defective on its face; omitting an essential statement indispensable to the validity of a notice to charge an endorser in any case. Here the notice is in form good. It has upon its face all the requisites of a legal notice, but misdecribes the note to which it is claimed by th,e plaintiff to refer. The present case is in principle like th,a,t pf The Cayuga Co. Bank v. Warden, (1 Comst. 413,) in this particular, and that decision must control ours upon this point. How the authorities stand upon this question, independent of the case referred to, it is not necessary, if it were proper, at this time to inquire. The question was accordingly one of fact, whether the defendant was misled by the mistake in the notice, and the finding of the court below on this question disposes of it.

Judgment affirmed, with costs.

(a) See ante, p. 490.