
    
      John Williamson Endorsee of Promissory note against William Turner, Endorsor.
    
    
      Charleston District,
    
    
      1802.
    
    
      A notary public making out a protest from the information of~ clerk, is not a t,uffi-~ient ground for his enter-lug it up in dut~ form ; it should be founded on his own personal knowledge,he must aot depend On hearsay, Though the clerk himself wOu~d be a competent witness to prove clue dhligence~ in attempting to give due notiQe DI' non-payment by a drawer,
    
    
      CASE against the endorsor on a promissory note of hand. Verdict for plaintiff. Motion for a new trial.
    
    
      The defence set up in this case, was want of due notice of non~payment by the drawer, and although the protest ap. peared to be in due and proper form to prove due and legal notice, yet upon the examination of the notary himself, it appeared that he had sent his clerk to the house of the de. fendañt, who returned and~. told him he was out of town; upon which information he entered up the protest. The presiding Judge (GRIMKE) charged the jury, that this wa~ not that regular kind of information, which would justify the notary in entering up the pro.es ., in order to charge an endorsor. But the jury, contrary to the opinion of the judge, found a verdict against the defendant for the amount of the note and interest.
    Mr. Chejes moved for a new trial,
    on the ground that the verdict was against law, and the opinion of the presiding judge on the trial.
   Whereupon, all the Judges concurred in opinion, that the verdict should be set aside and a new trial granted ; be» cause, the law of merchants gives very high faith and credit to those kinds of instruments being made by a sworn officer ; so much so, that they are scarcely ever called in question in a court of justice ; but are received as prima facie evidence in all mercantile questions of this kind. But where it appears that a notary does not depend upon his own knowledge, as to so important and leading a fact as that of an endorsor or acceptor of a bill of exchange or promissory note, not being to be found upon the necessary inquiry, it is a good ground to reject that instrument, as this kind of hearsay information from a clerk, will not warrant by any means so confidential an officer as a public notary, in entering up his protest. His own knowledge of the fact, will alone justify him in making up his protest, either to send abroad into foreign countries, or in inland transactions. The Judges, however, were of opinion, that the clerk himself would have been a competent witness to have proved the use of due diligence to find out the defendant, in order to give him notice of non-payment by the drawer, independent of the protest.

Rule for new trial made absolute.

Present, Grimke, Johnson, Trezevant and Brevard-  