Dunn v. Adams, Parmeter & Co.

ORMOND, J. — The question raised by the demurrer to the declaration, is, whether an action can be maintained, by the indorsee of a promissory note, payable and negotiable at a bank [529] beyond the limits of the State, against the indorser, without bringing suit against the maker to the first court of the county in which he resides, to which suit can be brought; the indorsement having been made beyond the limits of the State. This contract was made in the State of Georgia, and by the law of that State, must the rights of the parties to it be ascertained. There is no proof what the law of Georgia is, or whether there has been by statute, any change of the common law, which we judicially know obtains in all the States of the Union; and in the absence of such proof, we will presume that the common law prevails. < Though some doubt was at one time thrown over the question, by the scruples of Lord Holt, it is now generally conceded, that promissory notes were negotiable at common law; such being the case, and presuming as we must, that such is the law of the State of Georgia, the declaration which treats this note as an instrument negotiable by the law merchant, is correct, and the demurrer to it, was correctly overruled*.,] The questions arising out of the bill of exceptions, relate to the sufficiency of the proof. The declaration avers a presentment for payment, at the bank where the note was payable, on the last day of grace; that payment was refused; and that the defendant on the same day, had notice of these facts. To prove this, the protest of a notary public was offered, which if properly received, established the allegations in the declaration. By an act of the Legislature of this State, (Aik. Dig. 327) it is provided, that the protest of a notary public which shall set forth a demand, refusal, non acceptance, or non payment, of any inland bill of exchange, or other protestable security, for money or other thing, and that legal notice, expressing in the said protest, the time when given of such fact or facts, was personally, or through the post office, given to any of the parties entitled by law to notice, shall be evidence of the facts it nurports to con [530] tain, and entitle the holder of such security, to the damages to which by law, he may be entitled.” Whether the protest of the notary will prove the averment in the declaration of demand of payment, refusal, and notice, must depend on the fact, whether this note is a “protestable security,” by the law of Georgia. Assuming as we do, that it is there, as at common law, negotiable, it does not follow that it isjprotestable, as it had not that quality at common law. Notes made in this. State, payable in bank, are protestable, by the statute. Whether they are so or not in Georgia, we are not informed; and in the absence of proof of any such law, the presumption must be, that they are not. Such being the aspect of the case, it follows, that the protest of the notary was incompetent evidence to establish the facts recited in it; and it should have been rejected. As the case must be remanded, it is proper to say, that if the protest could have been received, the statement of the notary, that he had given notice to the defendant, was sufficient. On the authority of the cases of Curry v. The Bank of Mobile, (8 Porter 360) and Roberts v. The State Bank, (9 Porter 312) no proof was necessary of the official character of the notary. By the customary law of nations, as well as by the law merchant, the official acts of a notary public, are authenticated by his seal. Let the judgment be reversed and the cause remanded.