
    
      David Aiken, indorsee, vs. Robert Cathcart, indorser.
    
    1. After suit brought on a bill, the protest of the notary, altered by him so as to correct a mistake made in stating that he presented the note “at the said bank,*’ where the note was discounted, instead of “at the said office,” meaning the place where the note was payable, is not admissible in evidence to prove a demand of and notice of non- payment. The mere correction by the notary of his protest, is no more than his declaration that it was wrong, and is as clearly inadmissible in evidence.
    2. The Act of 1822, (6 Stat. 182,) places the protest of an inland bill or promissory note, in the case of the death of the notary, or his residence out of the district where the case is tried, upon the footing of a protest made abroad, of a foreign bill.
    3. Regarding the notary as merely having noted the note for protest, his altered protest, as an extension of it after the commencement of the suit, would not be enough to charge the defendant, any more than the drawer of a foreign bill, noted for protest abroad, could be charged by the extension of that protest, after suit brought.
    
      
      Before Butler, J. Fairfield, Spring Term, 1844.
    Assumpsit on a promissory nóte. The cause of action grew out of the following state of facts.
    Dr. John Myers made a promissory note for $5,000, dated 9th March, 1842, payable two hundred and fifty days after date, to the order of Robert Cathcart, at the office of Robinson and Caldwell, in Charleston, and endorsed by Robert Cathcart, William Woodward, and David Aiken. The note was discounted in the Bank of the State, by Robinson & Caldwell. When it fell due, they paid it off, after demand and protest. The protest to David Aiken was dated 17th November, 1842, and signed by Richard Cog-dell, notary public. In the body of the protest, the word bank had been erased, and the word office inserted under it, so to read, at the “said office,” instead of “bank.”
    Upon some objection being made to thé evidence, Mr. McDowell was sworn, and said, “that seeing the word bank in the protest, he sent it to the notary, to know whether that word had been left there by mistake.” The protest was returned with the alteration as stated above.
    James R. Aiken was sworn, and said “he presented the protest to Mr. Cogdell, and saw him make the alteration.” The protest was then read. James R. Aiken, son of plaintiff, said he was present when Dr. Myers brought the note to plaintiff for his indorsement. The plaintiff objected at first, saying “you have good names enough,” but finally signed his name under those of the other two.”
    On the night of the 1st of April, 1843, that being the night of return-day, a writ was served on David Aiken, in which Robinson & Caldwell were plaintiffs. At the time the writ was served, a proposition was made by some one, that the indorsers should pay each his aliquot part of the note, upon the ground that all were accommodation indorsers. At the suggestion of the witness, James R. Aiken, this proposition was rejected; and James R. Aiken then advised his father to pay the note, by draft on Martin, Starr & Walter, and sue the other indorsers. The witness and his father forthwith went to the office of Messrs McCall & Robinson,* the attornies of Robinson & Caldwell, and made a proposition to put in their hands the draft mentioned — to be in payment of the note, provided it was accepted. Whereupon, the note of Myers was delivered to plaintiff, upon his giving a receipt for the same, with these words in it — “which note I am to return to said J. B. McCall, if Robinson & Caldwell do not accept a draft drawn by me in favor of James R. Aiken, on Martin, Starr & Walter, in payment of said note, which belongs to them.” '
    As soon as the writ could be prepared, this action was commenced. The same grounds of objection were made to the recovery on the circuit, that are contained in ihe grounds of appeal.
    Under the instruction of the court, the jury found a verdict for the plaintiff, for the amount of note and interest.
    The defendant moved the Court of Appeals for a non-suit or new trial, on the following grounds.
    1. That as the protest of the notary, made in Charleston, had been altered since the commencement of this suit, it had lost its efficacy as evidence, under the Act of 1822.
    
    2. That if there was any mistake in the original protest, the notary had no power to alter it, but the mistake was the subject of proof, and the defendant had a right to cross-examine upon the question of mistake.
    3. That as the plaintiff had accepted the service of a writ, at the suit of Robinson & Caldwell, on this same note, and had given a draft on Charleston, subject to the approbation of Robinson & Caldwell, in payment of the note, whose decision was not known at the commencement of this suit, the action was prematurely brought.
    And for a new trial, on the following grounds :
    1. That the note was drawn and indorsed for the accommodation of the maker, and the indorsers are each equally liable among themselves.
    2. That as the plaintiff voluntarily paid the whole note, when the proposition was made to him by the holder to pay one-third, he is the voluntary creditor of the defendant for two-thirds, and can recover but one-third.
    
      McCall & Robertson, for the motion. McDoioell, contra.
   Curia, per

O’Neall, J.

The only question which will be considered is that arising out of the 1st and 2d grounds of appeal, whether the protest of the notary, as altered by him.after suit brought, was admissible to prove a demand of and notice of non-payment.

The 2d section of the Act of 1822, 6 Stat. at Large, 182, provides, “that whenever a notary public who may have made protest for nón-payment of any inland bill or promissory note, shall be dead, or shall reside out of the district in which said bill or note is sued, his protest of said bill or note shall be received as sufficient evidence of notice in any action, by any person whatsoever, against any of the parties to such bill or note.”

This was placing the protest of an inland bill or promissory note, in the case of the death of the notary, or his residence out of the district where the case was tried, upon the footing of a protest made abroad, of a foreign bill. Chitty on Bills, 517 ; 12 Mod. 345.

Such a paper, to be evidence per se, must carry with it all the usual evidence of genuineness. If it be altered after made, it destroys its character of authenticity, and would go far to exclude it altogether from being received in evidence. But it certainly furnishes no evidence that the alteration has been made according to the truth, for the law does not give it any such effect. To permit it to establish the fact that the notary, in extending the protest, made a mistake in stating that he presented the said note at “the said bank,” meaning the Bank of the State of South Carolina, where the note was discounted, instead of at “the said office,” meaning the office of Robinson & Caldwell, where the note was payable, would be allowing his mere statement out of court as evidence of that fact. This is nothing but hearsay. It is the same thing as if James R. Aiken had proved, “I took this protest to Mr. Cogdell, and on shewing it to him he said “the said bank” is in it by mistake; I presented the note at the office of Robinson & Caldwell, and made the demand.” Would such evidence be admissible 'l It is clear it would not. The mere correction by the notary, of his protest, is no more than his declaration that it was wrong, and is as clearly inadmissible in evidence.

The best position which the case could occupy for the plaintiff, would be to consider the notary as having merely noted the note for protest, and his altered protest as an extension of it. Looking to a foreign protest of a foreign bill, it seems to be well settled that mere noting of the bill for protest will not do. Leftley vs. Mills, 4 T. R. 175; Chitty on Bills, 280 ; 2 Phill. on Ev. 36. This being so, it would follow that an extension of the protest, after suit brought, would not be enough. And although it seems to be doubtful whether, if a foreign bill be noted for protest abroad, the notary may not, any day after, draw the protest and date it of the day when noted : yet it is advised that it should be completed on the day notéd. Chitty on Bills, 289. And surely it would not be pretended that after suit brought, it might be made out, however it might be before. And so it is expressly said in Bailey on Bills, 260. “The protest may be formally drawn up at any future period; provided, that in the event of a suit, it be drawn up before the commencement of such suit; for the drawer was not properly chargeable only upon the protest.” In this case the defendant may be charged without the protest; but when the protest is relied upon to charge him, he can say, as an instrument of evidence against me, in its present shape, it had no existence when suit was brought, and hence I cannot now be charged by it, no more than the drawer of a foreign bill, noted for protest abroad, could be charged by the extension of that protest after suit brought.

The motion for a new trial is granted.

Evans, Bdtler, Wardlaw, and Frost, JJ. concurred.  