Homes v. Smith

The opinion of the Court was by Shepley J. Without reference to the provisions of the statute of this State, the original records of the deceased notary are legally admissible to prove demand and notice. Such testimony has been received by judicial tribunals of the highest character af [183] ter the most full consideration. 15 Mass. R. 380 ; 13 Pick. 465; 20 Johns. R. 168; 7 Wend. 160; 1 Harrington, 10. Nor is there any doubt, that the copy of the record of the notary, duly attested by the clerk of the Courts, is admissible by statute, 1821, ch. 101. By that a notary is authorized to give “all notices to indorsers of promissory notes, and it necessarily implies the authority to demand payment of the makers. It provides in case of his death, that his records shall be deposited in the office of the clerk of the Judicial Courts in the county where he resided; and the clerk is authorized to give attested copies, which are declared to be as valid as if given by the notary. The objection is, that neither the record, nor the copy is under seal, and that the statute requires, that the notary should keep a seal, and that his acts should be under his official seal. The statute does require that “ all copies or certificates shall be under his hand and notarial seal.” But the record itself is not required to be authenticated by a seal, and the records of a court of record are not usually authenticated in that manner, and yet the seal of the court is in certain cases necessary to authenticate a copy. When the clerk makes a copy of the notary’s record, he can have no more right to use his seal, than to affix his signature; and the intention of the statute must have been, to make an attested copy by the clerk as good evidence as a copy, under the hand and seal of the notary, would have been. When inland bills and notes are by statute required to be protested by a notary, his acts only can be admitted in proof, as in the case of foreign bills. But when, as in this state, there is no such provision, the notary being only authorized to do it, his records, and certificates under his hand and seal, are admissible, yet not required, to prove demand and notice. The note being payable “ one year from date,” it is said, that the demand should have been made upon the sixth, and not upon the seventh of May. But in such cases, the day of the date is to be excluded in the computation. Windsor v. China, 4 Greenl. 304; Bigelow v. Willson, 1 Pick. 485. And the demand appears to have been properly made, and due notice to have been given. Default to he entered.