
    Ogden v. Glidewell et al.
    
    The party withdrawing his demurrer before argument and judgment thereon, may plead to the action without affidavit of merits.
    Where the notary is dead, his record is admissible in evidence on common law principles ; but where the statements of the notarial record have been sworn to and certified, it is admissible under the statute of 1833.
    
      ERROR from the circuit court of the county of Warren.
    This was an action against the makers and endorsers of a promissory note. The record stated that a demurrer was first filed, which after joinder was withdrawn, and a plea to the merits allowed to be filed without any affidavit of merits.
    The plaintiff offered in evidence to the jury the protest of the notary public, and also the notarial record, with a certificate of its truth made on oath according to the provisions of the act of 1833. To the introduction of this record, the endorsers objected, and the court sustained the objection, upon which the plaintiff tendered his bill of exceptions, which was allowed. It was also in proof that the notary was dead.
    W. C. Walker, for plaintiff in error.
    ’ The plaintiff in error sued Glidewell, Green & Co. as makers, and John Cowan and Samuel Templeton as endorsers of a promissory note. At the trial the plaintiff proved the death of E. H. Maxey, the notary public who protested the note, and offered to read in evidence the protest attached to the note, which was refused by the court.
    The plaintiff offered to read in evidence a notarial certificate made out in conformity with the statutes of Mississippi, and sworn to before a justice of the peace.
    The court erred: 1st. Because the paper ruled out was the original protest, and is evidence after the death of a notary. 8 Wheat. 326, Nichols v. Webb.
    2d. Because the certificate was drawn out in conformity with the statutes of the state of Mississippi, authorizing such certificates if sworn to, to be read in evidence, and if it could have been read during the lifetime of the notary, his subsequent death does not affect its admissibility.
    3d. Because after the death of a person usually employed to make presentment to the maker and give notice to the endorsers of notes, as a sworn messenger of .Banks or notary, his book is admissible to prove presentment and notice. Wells v. Barrett, 15 Mass. Rep. 380. Bailey on Bills, p. 511. Of course, any official writing drawn out in accordance with the law, should be admitted to prove the same facts, as well as his book or record.
    4th. Because the notarial record was written -and sworn to by the notary in obedience to the requisition of the statutes of the state, it was an official act, and within his prescribed duties. How. & Hutch. Dig. 434. It has been held that the mere memoranda made by a cashier of a bank of his having notified an endorser, was after his death prima fade, evidence of notice. 7 Wend. 160.
    5th. Because it is not necessary to produce in evidence the notary’s books or records. During the lifetime of the notary, if his recollection is distinct on the subject of presentment and notice, he need not even refer to his records when called upon for his testimony; and if he has made no record of presentment and notice,, still his evidence sworn to ■ from recollection would be admitted. For this reason, it is that after his death, although he may not have kept complete records as the law requires, (for certain purposes,) any of his official acts, especially accompanied by the sanction of an oath, should be received as testimony.
    6th. Because the object of the law requiring notaries to keep full records was to protect the interests of holders of notes, which might be jeopardized by their death. Where a notary has but partially complied with the law, his acts so far as they are in obedience to the law should be used for the promotion of the great object of the statute. In the present case it was proved that the notary inserted in his record merely a copy of the note and day of protest, and that he kept loose memoranda of the manner of giving notice, meaning probably at some future day to complete them. On being called upon for a certificate, he would refer to these memoranda to learn to whom he gave notice. These memoranda were in fact a part of his records, which have been lost since his death.
    The court erred in not granting a new trial, as for the above reason, plaintiff’s evidence was improperly excluded.. There was error in the court below in allowing defendant’s counsel to withdraw the demurrer filed in this case and giving permission to plead without cause shown. A party must demur or plead. He cannot do both. Saunders v. Phillips, p. 170. If there is a joinder in demurrer, there is no statute authorizing its withdrawal unless on affidavit of merits.
    French & Burwell, for defendant,
    Insisted that the notarial record and affidavit were ex-parte, and not admissible in evidence, without notice to the opposite party.
   Opinion of the court by

Mr. Justice Thotteu:

The record presents two questions for the decision of this court: 1. Whether the court erred in allowing the defendants to plead in chief to the merits, after the withdrawal of the demurrer. 2. And whether the notarial record offered in evidence was properly refused by the court.

1. The statute provides that if the defendant shall demur to the declaration, and the demurrer be not sustained on joinder and argument, the court shall proceed to render up judgment, &c.; and no plea to the suit or action shall be admitted, unless the defendant shall make oath or affirmation, that he hath a good and substantial defence, &e. This statute evidently contemplates the case of a judgment rendered by the court, after joinder and argument, in favour of the plaintiff. Here there was no argument, and the action of the court was permissive merely, in allowing the defendants to abandon their demurrer. We are not authorized to infer that the judgment of the court would have been against the demurrer, since it was not submitted to its decision. It is sufficient that the court rendered no judgment. The case is not therefore within the statute. It is in principle like the case of a demurrer to a plea, and the confession of the demurrer by the defendant, and leave prayed and granted to amend the defective plea, in which case the statute of amendments and jeofails controls the proceedings. It is then a question addressed to the discretion of the court, and from its determination no appeal lies. This is a familiar question of the law.

The question of the competency of the notarial record is the same as that which arose in the case of the Planters’ Bank v. Barnard, 4 Howard, 98. The only distinction between that case and the present is that the record of the deceased notary, which was there offered as testimony was not certified under the oath of the notary. And it was therefore “ held not to be evidence per se, under the act of 1833.” But it was decided to be admissible on another principle, which exists by the common law, as the memorandum of one who knew the- fact, had no interest to falsify it, and which was made by him as a public officer in the regular course of his business as such. 1 Starkie’s Evid. 70. 10 East, 109. 1 Salk. 285. 8 Wheat. 326. 15 Mass. Rep. 380.

The record in the case at bar is however entirely exempt from the objection which was taken in that case. It is subscribed by the notary, and there is appended a regular certificate of a justice of the peace, that the facts contained- in it were sworn to before him by the notary. The record also contains the testimony of the justice upon the trial below, that the affidavit was made as stated on the notarial record. This is a full compliance with the statute. That act provides that when any notary shall protest any bill or note, he shall make and certify on oath a full and true record of what shall have been done thereon by him, in relation thereto, according to the facts, by noting thereon whether demand was made, of whom, and when, when the requisite notices were served, and on whom, where mailed if such be the fact, when mailed, to whom and where directed, and every other fact, &c.

The record was then admissible upon the principle of the statute as well as that of the common law. The case of Nichols v. Webb, 8 Wheaton, 326, is a decisive authority for the admission of the testimony under the common law.

The judgment of the court must therefore be reversed and a venire de novo awarded.  