Briggs v. Stafford

Bullard, /., delivered the opinion of the court. This is an action by the holder, against the endorser of a promissory note, alleged to have been duly protested for nonpayment, and notice thereof given to the endorser. There was a verdict for the defendant, and judgment being pronounced thereon, the plaintiff prosecutes this appeal. Our attention is first drawn to a bill of exceptions, from which it appears that the defendant offered as a witness E. P. Ellis, the notary who signed the protest filed in this case, to prove that no demand was made, which was objected to by the plaintiff, on the ground that the notary could not contradict his own acts; but the court admitted the witness to be sworn, notwithstanding the objection. ■ We are of opinion that the court erred. A public officer, who has given a solemn certificate in his official character, and under his seal, cannot be listened to as a witness to prove it false. There is a degree of turpitude in certifying as true what the officer does not know to be true, as well as in certifying what he knows to be false. In either case, whatever may be the palliating circumstances in foro con-sciencias, we think the falsity of the certificate ought not to be shown by the testimony of the officer himself: “ Jlllegans turpitudinem suam non audiendus.” But it does not necessarily follow that the verdict is to be set aside on account of the admission of improper evidence. The proof of notice of protest is by no means satisfactory. It appears that the residence of the defendant is nearer another post-office than that in which the notice was deposited, and it is not clearly shown that the defendant was in the habit of taking his letters or papers out of the office where the notice was left. We cannot, consequently, disturb the verdict. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.