Austin v. Wilson & Calkins

By the Court. This is an action in favor of the indorsee of [633] a promissory note, datpd in New York, and made payable to the order of John B. Anger, agent, who resided at the time, it would seem, in the city of Brooklyn, and indorsed by the payee, and the defendants successively. The note is made payable in Orwell,Vermont. The only direct evidence of demand and notice is the noting for non-payment upon the note, by a notary public and his formal notarial protest, made at Orwell, the notary having deceased before the trial. The note fell due on the sixth day of January, 1849, and was then protested for non-payment, at the Bank of Orwell, where the same was lodged for collection, and where demand of payment was made by the notary, the maker of the note having never resided in Orwell, or had any place of business there, but residing and doing business in the city of New York. ■ The plaintiff’s principal place of business in Orwell, was at the Bank of Orwell, although he kept house and transacted a portion of his business at his dwelling-house. Three letters of the defendants were read in evidence by the plaintiff, written after the note fell due, in all of which the defendants recognize their liability upon the notes, as indorsors, without •questioning the regularity of notice to them, but asking for indulgence until they can collect the money of the parties primarily liable upon the note. The court, on this evidence, gave judgment for the plaintiff for-the amount of the note. The great question in the case, and indeed the only question perhaps, is whether the doings of the notary were properly admitted. For if properly admitted, then there can be no doubt, that, taken in connection with the letters, they make out a sufficient case. If not properly admitted, the case should be' opened, unless-the letters also make a case, by themselves. The case is one-large in amount, and every way important. Some question was made in argument, whether in this case- the formal protest could be in any event regarded as evidence, not'being made at the very time of the transaction of demand and notice, as is probable, from the usual course of doing such business, and! as was shown to have been the usual custom of the notary in this case. But there would seem no good reason, why if any part of the doings of the notary are to be shown by his- record of the af [634] fair, we should not have the whole, which he esteemed the statement of what he had done, and especially the formal protest, which is the deliberate and solemn record or engrossing, so to speak, of the whole transaction. And in this case, the notary kept no other record. But the books show, that in all cases where the notary keeps a book of records of his doings, the book is admissible after his death. In the case of a foreign bill the notarial protest is only evidence of a demand and protest for non-payment, at common law, as this is all which properly belongs to the protest, and proof of notice to other parties, is to be shown by the testimony of the notary or other proof, except that in New York and some other States, the certificate of the notary is made proof of notice to the other parties, by special statute. 3 Kent’s Com. 115. Chit, on Bills (1836) 642. But in regard to a promissory note, such protest is not evidence, ordinarily, upon either point. But this evidence is not dependent upon any rule of evidence which applies to the case of a protest, while the notary is living. 1. For in the case of a promissory note, even drawn in one State and payable in another, and indorsed by persons residing in, different States, it could scarcely be contended, that a notarial protest is indispensable in case of non-acceptance or non-payment, as is requisite in the case of foreign bills. The contrary has always been held in England and this country. Promissory notes even after indorsement, follow the law of inland bills of exchange in this respect, where protests are allowed, as evidence of claiming special damage and for convenience in practice, but are not regarded as indispensable to charge the indorser, or as evidence, except for special objects, and under special circumstances. So that upon both these grounds, the notarial protest is not evidence, while the testimony of the witness may be had. It must therefore be referred to the head of an entry, made by a person since deceased, if admissible upon any ground. . And here it must be confessed the cases seem to have gone a good deal upon the ground of the necessity of each case, in order to prevent a failure of justice. But this necessity is not the exigency of the particular case, but of a class of cases where it is supposable no better evidence exists of particular facts essential to be shown, in order that justice may prevail. For this purpose the [635] mere entries of private persons, not sworn,- if made in the due' course of one’s business, and as a record of one’s acts, and by one' having no motive for misrepresentation, are admissible. And although the rule has been thus far fenced round, with these supposed necessary safeguards, it is one exceedingly liable to relaxation, in any emergency, affording such a degree of stress, as at first induced its adoption. But in the present case, it seems to us the doings of the notary were properly admissible according to the general principle deducible from all the decided cases upon this subject. In Pattershall v. Tusford, 3 B. & A. 890 (23 Eng. C. L. Rep. 212,) Taunton, J., thus states the rule upon this subject. “A “ minute in writing, made at the time when the fact it records took “ place, by a person since deceased, in the ordinary course of his' “ business, corroborated by other circumstances which render it “ probable that that fact occurred, is admissible in evidence,” This is the general doctrine of all the cases upon this subject. It is not essential that the entire record should be made at the very moment of the transaction, but it is sufficient if done within a few days, in the ordinary course of business. It is not expected in such cases, that positive proof will exist of the time of the entry being made. If it appear regular, and purports to contain a cotemporaneous record of the transaction, it will be entitled to the ordinary presumption in its favor. The present case comes fully within these general rules. But in some cases this very evidence has been received to show the dishonor of a bill or note. In Poole v. Dicas, 1 B. N. Cas. 649, the entry of a notary’s clerk in the notary’s book, of no effects, was held sufficient evidence to prove the dishonor of the bill, with other circumstances. Tindall, Ch. J. said, “ We think it admissible “ on the ground that it was an entry made at the time of the trans- “ action, and made in the usual course and routine of business, by “ a person who had no interest to misstate what had occurred.” In Welsh v. Barrett, 15 Mass. 380, the entries of a deceased messénger of a bank, Where a note had been lodged for collection, was held evidence to prove demand and notice. This is certainly a stronger case than the present, and it has been very generally followed in this country. Halliday v.-, 20 Johns. 168, was an action upon a promissory note and the protest and register of [636] protests of a deceased notary, were held admissible evidence to prove demand and notice, such as was detailed. The following cases confirm the same rule. Nichols v. Webb, 8 Wheaton 326. Hart v. Wilson, 2 Wend. 513. Butler v. Wright, 2 Wend. 369. Nichols v. Goldsmith, 7 Wend. 160. Merrill v. Ithica and O. Railroad Co., 16 Wend. 587. In Smith’s Lead. Cas. 1 Yol. 224 Amer. note, it is said, citing from the New York cases, 2 Hill 537. 4 Hill 129, “It is now considered a settled rule, that entries and memoranda made in the •due course of business, by notaries, clerks and other persons, may ibe received in evidence after the death of the person who made ¡them.” We think the demand was all that could be required in the present case, under the circumstances, and incline to think this is a case where no formal demand was necessary. There was certainly no difficulty in the maker finding the note, as the residence of the holder was well known and the note was in fact at the very place where it would have been most likely to be looked fox’. And the maker having no domicil, or place of business at or near the place of payment, any demand would be vain and useless. And under such circumstances, ordinarily, no demand is re■quired, but the excuse must be stated in such case, or the party may cause demand to be made at the most- public banking house, as was done here, ■ The defendants’ letters, too, afford the most satisfactory conformation of the regularity of the doings of the notary, and might, within the principle of the decided1 cases, be resorted to, if needful to make out a case, by themselves, • Judgment affirmed. Note. Of a somewhat similar character to this kind-of evidence, are declarations in extremis, the testimony of a deceased witness at a former trial, and memorandums made by the witness in order to enable him to retain an accurate knowl edge of a transaction, in regard to ail which, very essential relaxations have from time to time taken place in order to conform to reason and good sense and the just moral weight of evidence. There can be no doubt, that in a moral point of view, and by that, we mean of course, its eifect in convincing the understanding and the heart, the testimony in this case was far more satisfactory than that<of any single witness upon the stand.