
    Daniel & Rathburn v. Columbia Downing.
    By the provisions of the tenth section of the act of April 13, 1858 (55 Ohio L. 13), concerning notaries public, domestic bills of exchange and promissory notes are made proper subjects for notarial protestation; and when such paper is protested by a notary appointed and qualified under the laws of this state, the instrument of protest is prima faeie evidence of the facts therein stated.
    Error to the District Court of Meigs county.
    The original action was brought by the plaintiffs in .error as indorsees against the defendant in error as indorser of a promissory note, in the Court of Common Pleas of Meigs county.
    The following is a copy of the noce :
    “ $103.75. Pomeroy, 0., July 2,1858.
    “• Ninety days after date we promise to pay to the order of 0. Downing one hundred and. three and seventy-five one-hundredths dollars, for value received. Payable at the office of Daniel & Rathburn, with ten per cent, interest after maturity.
    “ Coalport Salt Company,
    
      Per C. Downing, See. $ Treas.
    
    (Indorsed,) “ C. Downing.”
    The due presentation of the note for payment and notice to the defendant of non-payment were put in issue.
    The plaintiffs below, to sustain the issue on their part, offered in evidence an instrument of protest of a notary public, appointed and qualified under the laws of Ohio, accompanying the note sued on-
    The instrument of protest was in proper form, showing due demand for payment of the note, and due notice of non-payment to the indorser.
    To the introduction of this instrument in evidence the defendant objected, and .the objection was sustained; to which plaintiffs excepted.
    
      Yerdict and judgment were rendered for defendant.
    On error, the District Court affirmed the judgment of the -Common Pleas.
    To reverse the judgment below, this proceeding is prosecuted.
    
      J. Cartwright, and Bussell $ Bussell, for the plaintiff in ■error:
    The instrument of protest, with the accompanying note, was competent evidence. 1 S. & C. Stat. 872, sec. 10; Act of April 2, 1852 (50 Ohio L. 121, sec. 6); Case v. Heffner, 10 Ohio, 180, was decided under the act of Eebruary 7, 1816, and hence is of no authority now.
    
      Qrosvenor $ Vorhes, for defendant in error:
    The protest of an inland bill, when no statute intervenes, is not necessary, and is not evidence of the facts stated in it. 2 TI. S. Dig. (1st rev. series) 782, sec. 1975 ; Union Bank v. Hyde, 6 Wheat. 572; Miller v. Hockley, 5 Johns. 375; Paine v. Winn, 2 Bay. (S. C.) 376; Young v. Bryan, 6 Wheat. 146; Chesapeake, etc., Canal Co., 1 Harr. 234; Taylor v. Bank of Illinois, 7 B. Mon. 589 ; Case v. Heffner, 10 Ohio, 183; Edwards on Bills and Notes, 437-447; Redfield k Bigelow’s Leading Cases on Bills, etc., 857; Parsons on Contracts (5 ed.) 286; 10 B. Mon. 64; Carter v. Burley, 9 N. H. 558.
    The statute (S. & C. 872), does not attempt to say what notes and bills' require protest.
    We claim that, as the law stands, the notary is a mere agent of the party for whom he acts, having no greater authority ; and that it is not at the option of the holder to give greater efficacy in evidence to the acts of his own agent than he could to his own.
   By tee Court.

The 10th section' of the act concerning notaries public, etc., passed April ,13, ,185.8 (55 Ohio L. 13), provides : “ The instrument of protest of any notary public appointed and qualified under the laws of the state, or the laws of any other state or territory of the United States, accompanying any bill of exchange or promissory note which has been protested by such notary for non-acceptance and-non-payment, shall be held by the courts of this state as prima fade evidence of the facts therein certified ; provided, that any party may contradict, by other evidence, any such certificate.” • In our opinion, the legislature intended, by this section, to make domestic bills of exchange and promissory notes, as well as foreign bills, proper subjects for notarial protests, and that, therefore, the Court of Common Pleas erred in rejecting the testimony offered by the plaintiff below. Case v. Heffner, 10 Ohio, 180, was decided before the passage of the act of 1858, or any other statute containing provisions equivalent to .those of the above 10th section.

Judgments below reversed, and cause remanded.  