Weems v. President of the Farmers Bank

Bartol, J., delivered the opinion of this court. We arc of opinion, that (he Superior Court erred in refusing the appellant’s first prayer. In order lo fix upon (he appellant legal responsibility upon the bills of exchange sued on, It was necessary (under the statute,) lo prove a demand for payment made upon the party first, liable, or his legal representative. In this case, the only proof of such demand is to be found in the notarial certificate of protest, offered in evidence by the appellee. That protest states, that the notary “presented the said bill of exchange to Thomas Whelan, Jr., one of the administrators of the late J. J. Speed, the acceptor thereof, and demanded payment therefor,” Sec., Sec. If tlie acceptor of a bill be dead, demand may bo made upon his personal representative. But in this case there is no proof of the death of Mr. Speed, the acceptor, nor of the fact that Mr. Whelan, upon whom the demand was made, was one of his administrators. Those facts are stated by the notary in his protest, and it is contended that under the Act of 1837, ch. 253, this statement is sufficient prima facie proof. The Act provides, that a protest, duly made by a notary public, shall be prima facie evidence of (lie presentment of a note or bill for payment, “at the time and in the manner stated in the protest.” The object of the Act of 1837, was to dispense with the necessity of calling the notary as a witness at the trial, and to make tlie protest prima facie evidence of the fact, that he has presented the bill for payment at the time and in the manner therein stated, 1 Gill 149; but tlie Act does not constitute the certificate of the notary, any evidence of other collateral or independent facts, which it may contain, especially when such facts are not necessarily within the personal knowledge of the notary, or are of such a character as could not be established by his testimony if be were produc [240] ed as a witness. In this case, the fact that the bills' sued on, were presented to Thomas Whelan, Jr., is sufficiently proved by the protest offered in evidence; but the demand upon Mr. Whelan would not be sufficient, unless it be proved that he was the legal respresentative of Mr. Speed, the acceptor. The statement in the protest, that he was one of the administrators of Mr. Speed, cannot, by any just construction of the Act of 1837, establish the facts of the death of Mr. Speed, the acceptor, and of the granting of letters of administration on his estate to Mi. Whelan. These facts it was incumbent upon the plaintiff to prove, by other competent and legal evidence, and having failed to do so, there was no sufficient proof of demand and non-payment of the bills sued on to bind the defendant. (Decided April 18th, 1860.) Judgment reversed and procedendo ordered.