Gale v. Kemper's Heirs

Martin, J., delivered the opinion of the court. The defendants complain of the judgment of the District' Court against them, rendered on a promissory note, endorsed by their ancestor, on the following grounds: First, The demand was not legally made. Second, The demand, protest and placing the notices in the post office, should have been made in presence of the witnesses. Third, The certificate of the notary does not state in what post office the notices were put. , Fourth, The notice of protest was improperly directed to the parish of St. Mary, when there are Several post offices in that parish. . ' Fifth, The certificate does not state that the notices of protest were put into the post office, in due timé. Sixth, That the protest is an authentic act which cannot be proven, contradicted or eked out by parole evidence. 'Seventh, That a new; trial was improperly granted. Eighth, The heirs are nine in number, and each of them is decreed to pay one eighth of half of the whole debt. I. The note was made payable at the office of Discount and Deposit of the Bank of the United States, in the city of New-Qrleans, and the protest states that demand was made there from the proper officer. When a note is payable at a particular place, a personal demand on the drawer or maker, cannot always be made, and is not required. It suffices to have been made of any persons there. Chitty on Bills, 333, and note f. II. The counsel has not shown, and we are unacquainted with any law requiring a notary to be attended by witnesses when he makes a demand or protest, or serves a notice. 1( In speaking of the witnesses, the counsel is understood as referring to those who attest the entry of the hotary in his . book. These, in our opinion, are called on merely to attest that [209] the entry was made by the notary, and at the time it purports A notice of p™iy directedTo iheprineipaiand flee to the rest-dorser”* ^when parish, Aiatentambi-by6 par°ie .evidence. So the certificate of a notary is not amfm'ay'be e°¿ trained ;by parole testimony. New trials may be granted ex officio, in the sound discretion of the court. III. This point will be examined with the sixth. IV. The evidence shows, that at the time the notice was sent, there were two post offices in that parish; one in the town of Franklin, the seat of justice, and the other at the Dutch Settlement. The officers of the post office have attestecl that letters directed, generally, to St. Mary, are always sent to the former post office; none being sent to the other, unless they be specially directed thereto. The office at Franklin is the nearest to the residence of the endorser of the note, and the one at which he received his letters and papers. The notice was therefore properly directed. V. The certificate states that on the clay of the protest, the notary put the notice in the post office, directed to the endorser, at the parish of St. Mary. This was in time, and as soon as it could be done. VI.No attempt has been made to prove, contradict, or eke out the protest, by parole evidence. The certificate states that the notice was put in the post office, directed to the . ,r ,, ,T t 1 endorser, at the parish oí St. Mary. It does not appear on the' face of the certificate, that there is any ambiguity in this. The ambiguity which appears is latent, and may be , . _ , , . rr 5 J explained by parole evidence. The certificate is not an authentic act, in the meaning of the article of the Code, to which the counsel refers. Louisiana Code, 2256. The authentic act there spoken of, is the act which is received by the notary, in the presence of 'two witnesses, and subscribed by the parly or parties thereto. VII. New trials, are within the sound discretion of the court, and may be granted ex officio. VIII. The error suggested as to the amount for which each heir is liable, is evident on inspection, and the plaintiff’s counsel consents to its correction. It is, therefore, ordered, adjudged, and decreed, that the judgment of the. District Court be annulled, avoided and reversed; and proceeding to give such judgment as in our [210] opinion should have been rendered in the court below, it is, therefore, ordered, adjudged and decreed, that the plaintiff do recover of the defendant, the sum of one thousand dollars, with interest at,five per cent, per annum, from the 3d day of April, 1830, until paid, together with three dollars, the costs of protest, 'and the costs in the court below ; one half of said sums to be paid. by the defendant, widow Nancy Whittaker, and one ninth of the other half by each of the other defendants, respectively; the plaintiff and appellee paying the cost of this appeal.