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dishonor of the note." It is not easy to distinguish this case from the case of Ticonic Bank v. Stackpole, Supra. On an examination, however, it will appear that in the former case there were facts in the protest showing the dishonor of the note, sufficient for the Court to assume the fact of dishonor, implying a presentment, demand, and refusal; whereas, it appears in the latter case there was nothing showing notice of the fact of dishonor. The notice was not produced in the latter case, and no inference as to its contents could be raised.

§ 147. When notice is sent by the mail the certificate must show the fact clearly in order to appear it was proper under the statute to send notices in that mode. A notarial certificate, stating that notice of protest was served, etc., by putting the same in the post-office, directed, etc., is a sufficient compliance with the statute in New York, though it do not expressly state by whom the service was made.1 Proof that the notice was placed in the post-office, at nine o'clock in the forenoon of the day on which it should be sent, without showing that it was in season to be carried by the mail of that day, is not sufficient.2 And in the same case it was decided that when the indorser resides in a different State from that in which the demand on the acceptor was made, and when there is a town of the same name in at least two States, the direction of the notice should not only name the town in which the drawer resides, but also the State. The protest of a notary public of another State, wherein he states that he sent a notice of the dishonor of a bill to the drawer on the next day after a demand and refusal, "and by the first practicable mail thereafter," is competent evidence to prove the fact thus stated. Where a notary's certificate shows that he has mailed notice of protest, a prepayment of postage will be presumed.

§ 148. The certificate must show notice of dishonor, or it cannot be admitted in evidence. The notice given must con

1 Barber v. Ketchum, 7 Hill, 444; S. C. 4 Hill, 224.

2 Beckwith v. Smith, 22 Me. 125.

8 Beckwith v. St. Croix Man. Co. 23 Me. 284. See Housatonic Bank v. Laflin, 5 Cush. 546.

4 Brooks v. Day, 11 Iowa, 46.

vey such fact clearly and unequivocally to the party. Thus, a protest of a note payable at a bank, stating that written notices had been addressed to the indorsers, " informing each of them that he was held liable for the payment of the said note, without stating that the note was due and unpaid, is insufficient to charge the indorsers." The notarial certificate should show affirmatively a presentation to the person upon whom the demand of payment should properly be made. A certificate stating that the notary gave "notice of the non-payment of the bill " must be understood to mean that the notice was of non-payment on due presentment and demand, as stated in the certificate of protest, and is sufficient. It must show a presentment for payment by the notary himself.4

§ 149. The certificate need not state at whose request notice was given, for it will be presumed it was done at the instance of the holder." It will also be presumed the notary had the draft in his possession at the time he demanded payment.6

§ 150. Date of certificate.-Where a notary keeps a register, and notices therein his acts in protesting and giving notice, he can make up his certificate at any time thereafter from such entry, and it will be received in evidence as if made at the time of the occurrence of the acts.7

In Austin v. Wilson, it was held that it was not essential that the entire record of the notary should be made at the very moment of the transaction, but it is sufficient if done within a few days, in the ordinary course of business. But in a case

1 Farmers' Bank v. Bowie, 4 Md. 290.

2 Duckert v. Von Lilienthal, 11 Wis. 56; Otsego Co. Bank v. Warren, 18 Barb. 290.

8 Burbank v. Beach, 15 Barb. 326; Seneca Co. Bank v. Neass, 3 N. Y. 442.

4 Warnick v. Crane, 4 Den. 460; Hunt v. Maybee, 7 N. Y. 266; Bank of Kentucky v. Garey, 6 B. Mon. 626; except where deputies are authorized to make demand as in Louisiana; see Lee v. Buford, 4 Metc. Ky. 7; Chew v. Reed, 19 Miss. 182.

5 Duckert v. Von Lilienthal, 11 Wis. 56; Burbank v. Beach, 15 Barb. 326.

6 Bank of Louisiana v. Satterfield, 14 La. An. 80; Bank of Vergennes v. Cameron, 7 Barb. 143.

7 Chatham Bank v. Allison, 15 Iowa, 357; Brandon v. Loftus, 4 How. Miss. 127. 8 24 Vt. 630.

where the notary made protest and notified indorsers in March, 1839, and in October, 1845, more than four years and a half thereafter, made out his certificate, the Court refused to admit the certificate in evidence. It is not easy to see on what ground the certificate was rejected in this case; for if the notary kept a record of his official acts, such record ought to enable him at any time thereafter to make out his certificate. Where the statute required the certificate to be "either in or on the protest," and a certificate was made out more than a year afterward, and not on the protest, it was held inadmissible in evidence.2

§ 151. The certificate should be under the notarial seal as a general rule, invariably so if it be a foreign bill of exchange. In some places, it has been held that the certificate, if signed by the notary, need not be under his seal when the certificate is offered in evidence to show notice given of the protest of a promissory note.

Thus, in Palmer v. Whitney,3 the certificate of notice of protest of a promissory note did not bear the official seal of the notary, though the statute required that all notarial acts be attested by a seal. The objection was therefore raised that the certificate was not admissible on this account; but the Court held that as the notary when he gives notice of protest does not act officially, but as the agent for the holder, his mere signature to the notice, without attestation by his seal of office, is sufficient. It seems to me that this decision is very doubtful, and would hardly be accepted as authority elsewhere. Thus, in Iowa, it is held that a notary's protest is inadmissible in evidence unless his seal be affixed, though it is allowable for him to affix his seal when this objection is made; but it is not necessary that the certificate should formally refer to the seal.5

In a case in New York, the question was raised whether the usual certificate of notice when written beneath the protest, which was under seal, must also have a seal, and it was decided

1 Boggs v. Bank of Mobile, 10 Ala. 970.

2 Winchester v. Winchester, 4 Humph. 51.

3 21 Ind. 58.

4 Rendskoff v. Malone, 9 Iowa, 540.

5 Jones v. Berryhill, 25 Iowa, 289.

that it was unnecessary: so long as the seal appeared on the instrument, it was immaterial where it was appended.1

§ 152. Presumptions in favor of certificate.-As the certificate is made evidence of certain facts by statute, it must clearly state these and no more; it must be strictly construed with reference to these facts, and cannot be aided by presumption. The Courts will, however, in the absence of evidence to the contrary, presume in favor of the notary discharging his duties properly and regularly: as when it is not clear from the certificate at what time a presentment was made, it will be presumed it was during regular business hours, and that the notary had the draft in his possession.2

So it is held that every intendment is to be in favor of the performance of his duty by a notary who certifies to the protest of negotiable paper for non-payment.3

Where the certificate of a notary stated that he exhibited the note at the place of business of the promisors, and, demanding payment thereof, was answered by the person in charge that the promisors had left no funds there to pay the note, and that, said note remaining unpaid, he duly notified the indorsers by written notices, sent them by mail, having been requested so to do by the bank holding the notes, the time limited, and grace having expired-it was held that it might reasonably be inferred that he stated these facts in the written notices.4

§ 153. Parol evidence affecting certificate.-It must often be a practical inquiry as to how far a notary can by oral evidence affect or control his certificate of protest and notice. This much is certain, that a notary public who has made a protest of a promissory note, and given due notice thereof to the indorser, cannot be permitted, by oral evidence, to contradict or vary what he has certified to, so as to weaken the certificate.5 But he may, by oral evidence, explain his certificate so as to

1 Olcott v. Tioga R. R. Co. 27 N. Y. 546.

2De Wolf v. Murray, 2 Sandf. 166; Bank of Louisiana v. Satterfield, 14 La. An. 80; Union Bank v. Foulkes, 2 Sneed, 555.

8 McAndrew v. Radway, 34 N. Y. 511.

+ Lewiston Falls Bank v. Leonard, 43 Me. 144.

5 Garthwaite v. Casson, 23 La. An. 218; Barrow v. Richardson. Id. 203.

support it, and supply an omission or defect in it.1 Thus, in an action on notes against an indorser, the defendant denied that certain collateral bonds were tendered to the maker at the time the notes were presented for payment, as required by an agreement indorsed on said notes. It was held that the notary who had protested the notes could testify to facts connected with the tender, although no mention was made of it in the protest.2

A late case in Maryland is instructive in this connection. The certificate, dated December 23d, 1871, gave notice of the non-payment of the note, stating that payment had been demanded and refused. The note was due on the previous day, but there was no statement in the certificate showing it was then presented. It was permitted to introduce oral testimony to prove it had been presented on December 22d, at the date of its maturity.3

§ 154. Records of a deceased notary as evidence.— By the common law, the records of a deceased person, duly made in the discharge of his duties, were admissible in evidence.* Hence, the records of a notary, showing a demand of payment and notice to indorsers, have been allowed in evidence after the notary's death, though, if living, he would have to be called to testify to the same facts.5 Now, by statute, such records are admissible in evidence after the decease of the notary, to prove protest and notice."

CERTIFICATE OF ACKNOWLEDGMENT.

§ 155. Character of evidence. While a certificate of acknowledgment is not at all times conclusive, it certainly is the very strongest evidence of the facts therein recited, and can only be overcome by evidence of the clearest, strongest, and

1 Bradley v. Davis, 26 Me. 45; Naylor v. Bowie, 3 Md. 251.

2 Butler v. Murison, 18 La. An. 363.

3 Reynolds v. Appleman, 41 Md. 615. The Court, in this case, distinguished it from Ransom v. Mack, 2 Hill, 587; Routh v. Robertson, 11 Sm. & M. 382; Townsend v. Lorain Bank, 2 Ohio, 345; Wyman v. Alden, 4 Denio, 163; because in these cases the time of making the demand was explicitly stated.

41 Greenlf. on Ev. Sec. 115.

5 Brewster v. Doane, 2 Hill, 537; Welch v. Barrett, 15 Mass. 380; Butler v. Wright, 2 Wend. 369; Homes v. Smith, 16 Me. 181.

6 Ogden v. Gildewell, 6 Miss. 179.

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