Brooks v. Higby

Smith, J.: As the draft was addressed to the drawee at a particular place in the city where he resided, and was thus accepted by him, the particular place thus designated was the place of payment, and [237] a due presentment and demand of payment at that place was necessary in order to charge the indorsers. (Story on Prom, notes, § 227 and note 8, and cases there cited.) The certificate of the notary stated merely that the draft was presented and payment demanded “ at the place of business ” of the acceptor, without specifying the place. As it appeared that the acceptor had two places of business in St. Louis, the certificate furnished no evidence whatever that the presentment and demand were at the place where the draft was payable. The proof was fatally defective, and the motion for a nonsuit should have been granted. The respondent’s counsel proposed to supply the defect on the argument at Toa/nc by the production of a fresh certificate of the notary showing that the draft was presented at No. 114 South Main street. The rule allowing evidence of a fact imperfectly proved at the trial to be exhibited at bar, in opposition to a motion for a new trial, is, in general, confined to records or documentary evidence which proves itself, and on which no question can arise in the cause, except such as is apparent on its face. (Bank af Charleston v. Emerich, 2 Sandf., 718; Dresser v. Brooks, 3 Barb., 429; Burt v Place, 4 Wend., 591; Armstrong v. Percy, 5 id., 535 ; Ritchie v. Putnam, 13 id., 524; Hugh v. Wilson, 2 Johns., 46.) Under the statute of 1833, a notarial certificate is but presumptive evidence, and may be explained or contradicted by the party against whom it is produced. The new certificate offered in this case cannot be received' at bar to conclude the defendants; if it is to be used against them they are entitled to an opportunity to meet it at the trial. We are also of opinion that the evidence required the submission of the question of usury to the jury. Judgment and order should be reversed and new trial ordered, costs to abide event. Present — • Mullin, P. J., Taxcott and Smith, JJ. Judgment and order reversed and new trial ordered, costs to abide event.