Bennett v. Young

The opinion of the Court was delivered, by Lewis, J. In this case we are unable to perceive any error in the proceedings of the Court below. On the contrary, we are gratified to find that the Court was so properly impressed in regard to its powers and duties, and so careful of the rights of the parties, as to instruct the jury distinctly that “ the question of what is due diligence in making a demand upon the drawer, when the facts are undisputed, is a question of law exclusively, and that where it depends upon controverted facts, it is for the jury to determine what the facts are; and if the facts are ascertained the law settles it, whether there has been due diligence.” There was no error in this instruction. But it seems that the notary undertook to draw to himself the cognisance of the whole question of law and fact by a sweeping certificate that he had “made diligent search and inquiry” for the drawers. The judge admitted this certificate in evidence, and that [263] threw upon the defendant the burden of disproving the facts therein stated. This was rendered exceedingly difficult by the omission to state in the certificate the acts of the notary, with the material circumstances of time, place, and persons, which were supposed by him to amount to “diligent search and inquiry.” Where did he search ? Did he go to the last place of residence of the drawers ? Did he inquire of the holder himself, who is presumed to know, before he takes the note, the residence as well as the circumstances of the drawers ? Did he even take the trouble to examine the common source of information, the Directory? The certificate is silent on all these questions. But, difficult as the task was, the defendant gave ample evidence to show the dangerous nature of admitting the certificate of the notary as evidence of facts not distinctly stated, so that the party may have the means of rebutting the evidence, and the Court the means of judging, if the facts are not contested, whether they constitute due diligence or not. The Act of January 2, 1815, makes the official acts, protests, and attestations of all notaries public acting under the authority of this Commonwealth, certified under their respective seals of office, prima facie evidence. But it has been properly said, that this statute was not intended to enlarge the official duties of notaries, but merely to furnish the means of authenticating such acts as were within their official authority before. Chief Justice Gibson, in delivering the opinion of the Court in Belle-mire v. Bank of the United States, 4 Whar. 113, states that “ though generally if not universally employed on such occasions, the official character of a notary extends only to the protest, and not to the hunting up of the parties.” Under our present view of the value of these certificates, in the form in which this was made up, and the great abuse which may be practised by means of them, we are not surprised that the judge below told the jury that he had “ some question whether the certificate was any evidence at all.” It is not necessary to decide the question at present. It is sufficient to say that this remark to the jury furnishes no ground for reversing the judgment. Judgment affirmed.