Brennan v. Carl Vogt & Son

COLEMAN, J. — The defendant, Brennan was sued as an indorser, of a promissory note payable in bank. His liability must be determined by the commercial law. The case was tried by the court without the intervention of a jury, and judgment rendered for the plaintiff. The note was dated February 20, 1890, and made payable on July 31st after date. The certificate of protest shows that demand was made at the bank where the note was made'payable on the 4th of August after date, and notice of protest mailed to the indorser on the same date, directed to Mm at Birmingham, Ala. The first contention is, that the demand and protest should have been made on the 3rd of August. This court will take judicial notice that the 3rd of August was Sunday. The demand for payment and protest were properly made on the succeeding day. — Bradley v. Northern Bank of Ala., 60 Ala. 258; Code, § 1759. There is nothing in this point. The next question of contention is that the certificate of protest shows that notice was sent by mail to the indorser and not given in person, and that it does not show that the indorser was sought for at his place of business, or at his residence, for the purpose of giving such notice. The case of John v. City National Bank of Selma, 62 Ala. 534, is cited to Sustain the proposition. If the law at present was the same as when the decision1 in the case cited was rendered, the authority would be in point. It was provided in the act of December 10, 1878, p. 172, now incorporated into the Code as section 1777, that “If the party to be charged reside at the place of protest, and if it be a town or city having ten thousand or more inhabitants, or in which there is a free postal delivery of the mail, notice of protest may be be given through the mail, the postage being prepaid.” The evidence shows that Birmingham was a city with more than ten thousand inhabitants, having a free postal delivery of the mail. There is no question that under section 1776. the notice was addressed to the proper post-office. Section 1110 of the Code makes the certificate of a notary public, under his hand and seal of office, evidence of the demand for payment, of the notice of protest and the mode of giving the same. Such evidence may not be conclusive, but it is at least prima fade, of the truth of the facts certified to, provided for in the statute. The certificate of the notary, gives the number of notices mailed, to whom and where addressed, and contains a charge of eight cents for postage. The defendant introduced no [649] evidence. We are of opinion tbe evidence is sufficient, to sustain tbe conclusion reached by tbe trial court. Tbe objection to tbe introduction of tbe note and certificate of protest was not well taken, and was properly overruled. First, because tbe evidence was legal, and second, because tbe objection was too general. — Johnson v. Beard, 93 Ala. 96; Bell v. Kendall, Ib. 489. Affirmed.