
    C. C. Lathrop, Administrator, v. Thornton Lawson et al.
    The statutes of February 14th, 1821, and March 13th, 1827, in relation to protests and notices of protest of bills of exchange, &c., were not intended to change the commercial law as it stood before, but to afl'ord, in aid of commerce, a new, convenient and permanent means of proof. No one is bound to employ a notary to malte demand of a note or to give notice to an endorser.
    Entries in books, or memoranda made by persons in the discharge of their professional duties and who are not interested, are admissible in evidence, if made in the course of their busi ness and contemporaneously with the transactions to which they relate, where such perons have subsequently died.
    Where the certificate of a notice is informal, not having been attested by two witnesses, the notice may be proved by other evidence, and the certificate made by the parish judge who made the protest and gave the notice, but who subsequently died, is competent evidence of the protest and notice.
    APPEAL from the District Court of East Feliciana, Stirling, J.
    
      McVea and Winter, for plaintiff,
    contended: Plaintiff, in his capacity as administrator of the estate of Tilomas L. Andrews, deceased, sues on the following note : “ Clinton, 7th April, 1842. Six months after date I promise to pay to the order of Burrell Myers, the sum of four hundred and ninety-six dollars and two cents, bearing ten per cent interest from date, for value received; payable at the Branch of the Union Bank of Louisiana, at Clinton. (Signed) T. Lawson.” Endorsed, “B. Myers," “ J. L. DeLee." “Received on the within, one hundred dollars, this 15th May, 1845.”
    There was judgment against Lawson, the maker, by default. The case having subsequently come on for trial as to Myers and DeLee, the endorser’s, plaintiff offered in evidence the note (the signatures being admitted) and the protest made on the 10th October, 1842, by L. Saunders, parish judge, in his notarial capacity. These were received without objection. Plaintiff then offered the certificate. The certificate is as follows, and was attached to the protest itself: “ State of Louisiana, Parish of East Feliciana. I certify that the endorsers of the note hereto annexed, and a copy of which is hereon written, were notified of the demand and protest of the same, by written notices directed to Burrell Myers and John L. DeLee, and deposited by me in the postoffice at Clinton, La., this day, October 11, 1842. (Signed) L. Saunders, Parish Judge.”
    It was admitted by the defendants that Saunders was dead, and that the signature attached to this instrument, annexed to the protest, was genuine and his.
    The certificate, thus fortified by defendants’ admissions, was offered by plaintiff for the purpose of showing that the notices of protest were served in the manner as stated therein by Saunders, he having been the notary who protested the note sued on; his death and signature to the certificate being admitted, and the same being offered as an entry made by the notary, a third person, since deceased, in the way of his professional duty, contemporaneous with the protest and to which no suspicion could attach, and as being the best evidence of which, under the circumstances, the nature of the case admitted.
    To its introduction defendants objected, on the ground that the certificate was inadmissible, as not being in conformity with the act of 1821 for such case made; not having the two witnesses required by the statute. The court below sustained this objection, refused to receive the certificate, and plaintiff reserved his bill, attaching to it the document offered and rejected. Plaintiff being thus deprived of the means of showing notice to the endorsers, there was judgment of non-suit against him, and he now prosecutes this appeal.
    The question presented for the consideration of this court, is fully and fairly stated in the bill of exceptions, and is confined to the admissibility of the certificate relied on to show the notices. We conceive that the judge a quo erred in refusing to receive it.
    It is true that the act of 1821 prescribes that the certificate or declaration of the notary of his manner of serving the notices, attested by two witnesses, shall be received as legal proof of such notices,
    But we understand that the repeated decisions of this court have established, beyond question, that the act of 1821, as well as the subsequent act of 1827, have introduced no change in the commercial law as it stood before their adoption; that they have merely introduced a new method of proof, more suited to the convenience of commerce, but which does not exclude other means of proof, of which the party may choose to avail himself. We cannot deem it necessary to cite authorities in support of this position, nor to show that had the notary, L. Saunders, been living, the plaintiff might, have introduced him upon the stand as any other witness, and proven by parol the manner in which these notices were given, so as to bind the endorsers. The certificate, in proper form, may be the best evidence; but if informal, the parol testimony of the notary himself becomes the best.
    But if, as in this case, the notary be dead, and the party thereby deprived of the personal examination, is he left without a remedy ? Shall there be a total failure of justice ? The notary’s death having deprived the plaintiff of what, from the informality of the certificate, had become the best evidence, is there no secondary evidence which may supply its place? We think there is. The general rule relative to entries or memoranda made by third persons, since deceased, in the course of a professional duty contemporaneous with the act and connected with it, is clearly laid down by Greenleaf, vol. 1, § 115,116, pp. 138, 139 et seq. From secondary, they have become, by the death of the party, the best evidence of which the case admits, and as such are admissible.
    That this general principle is applicable to cases like the present where the entry or memorandum made by a notary now deceased, is offered to show service of notice so as to bind endorsers, seems to be well settled by the case of Planters’ Bank v. Bass, 2d Ann. 430, when this court expressly recognised its application; and we also refer, in support of this position, to the cases cited, viz : Nicholls v. Webb, 8 Wheaton, 326, where the whole question is ably discussed and many authorities reviewed; and to Chitty on Bills, 642.
    We think, then, that we show a protest made at proper time, in legal and proper form, and as the original act, which the court will perceive it is, good without the record or transcription provided by the acts of 1821 and 1827. Union Bank v. Morgan, 2d Ann. 418.
    We think we have also shown that the judge a quo erred in refusing to receive the certificate of the notary to show service of notice; that though informal as a certificate under the act of 1821, it was admissible as the entry or memorandum of the notary deceased, under the authorities referred to.
    Should the court decree the certificate admissible, we conceive that it fixes conclusively the liability of the endorsers, and ask that the judgment of the court below be reversed, and judgment rendered in favor of the plaintiff and against DeLee and Myers in. solido, for the full amount sued for; but if your honors should be of opinion that the certificate offered, though admissible, is not sufficient to fix their liability, without further testimony, we ask that the judgment be reversed, and the cause remanded for further proceedings according to law.
    
      A. W. DeLee, and Muse and Merrick, for the defendant,
    contended: This suit is against the appellees, Myers and DeLee, as endorsers of a promissory note.
    The only question in this case is presented by the plaintiff’s bill of exceptions to the opinion of the judge of the lower court, in refusing to admit in evidence the certificate of the notary of the manner in which the notices of protest were given. The court will see that the certificate is not made in conformity to the act of the Legislature, (see Bullard and Curry, p. 41, No. 6,) not having two witnesses to the same.
    The adjudications upon this subject have settled the law. See Davis v. Bour. geat, Executor, 3d Ann. 121, and the case there cited, viz: Gas Bank v. Nutall, 19 L. R. 449. Debleux v. Bullard, 1 R. R. 67.
    •But it is here contended, that the death of Judge Saunders, who could have been a witness if he had been living, takes the case out of the rule established by the above decisions. Such, it is believed, cannot be the law. 1. Because the statute has pointed out what shall constitute proof in like cases, and this certificate is not in conformity to the act. 2. Because the admissibility of entries made by third persons does not, as a general rule, depend on the fact of their being either alive or dead, but upon the entry itself. And it makes no difference as to the admissibility of such entries whether the party making it be living or dead. Greenleaf, No. 120. Hence, it being settled that the entry is inadmissible, the party being alive, it must follow that his death does not render that legal evidence which was illegal before. 3. Because the entiy was not made in the usual course of business as contemplated by law, which requires it should be signed by two witnesses. The authorities in regal’d to the entries made by deceased persons, refer only to those cases which are made in the usual course of business. But it is believed that no authority can be found, in which an imperfect act under a statute has been held admissible in evidence, after the death of the officer leaving it unfinished, when, were the officer living, his imperfect act would have been clearly inadmissible. Under the statute, the signature of the two witnesses were as necessary to give validity to the actas the signature of the notary. How then can it be said that a certificate not signed by the two witnesses was made in the due course of business. The certificate, therefore, becomes just as objectionable, because not done in the usual course of business, the statute having prescribed that course of business, as it would were the course of business prescribed by custom or immemorial usage.
    In the case of the Planters’ Bank v. Bass, cited by plaintiff’s council, 2d Ann. 438, the suit was brought on a note protested in the State of Mississippi. It does not appear that two witnesses were required by the law of Mississippi as is the case in Louisiana. And it was proved that the notaiy was the one usually employed by the bank to make demand, &c.
    In the case of Nicholls v. Webb, 8 Wheaton, 326, the note was protested in Tennessee, and the notary “kept a regular record of his notarial acts.” The record was duly established by proof. It is not shown that there was any statute regulation on the subject.
    The Supreme Court of the United States admit the proof (the notary being dead) on the ground that if the law did not authorise the reception of this kind of secondary evidence, “ few persons would be disposed to risk so much property upon the chance of a single life.” They say further, that the evidence is the best evidence the nature of the case admits of. (p. 333.) So undoubtedly it was. And no one would feel disposed to question the correctness of these decisions, arising as they do under the general principles of the common law. But in Louisiana it is otherwise. There is a special provision of law which provides the manner of authenticating protests, and perpetuating the testimony in regard to the same. This class of cases admits of the highest proof. And the proof only fails where there is negligence, and something omitted of the regular course of business of the notary’s office. The general principles of law exclude the testimony offered.
    In the cases cited, the proof was reluctantly admitted as the only means of making proof in Mississippi and Tennessee, and other common law States, where the notary who had regularly fulfilled his duties should happen to die. Here the plaintiff asks the court to offer a premium to negligence, and place on the same footing the irregular proceedings of parties or notaries, as those executed in conformity to law. It is for the plaintiff, we think, to show authorities to justify these principles and satisfy this honorable court, that where a party has failed to comply with a statute, he can be relieved from the consequences of his omission. The authorities cited, it is believed, established no such doctrine.
   The judgment of the court was pronounced by

Slidell, J.

This case being on trial as to Myers and DeLee, the endorsers, plaintiff offered in evidence the note and the protest made on the 10th October, 1842, by L. Saunders, parish judge, in his notarial capacity. These were received without objection. Plaintiff then offered the certificate of notice. The certificate is as follows, and was attached to the protest itself: “ State of Louisiana, parish of East Feliciana. I certify that the endorsers of the note hereto annexed, and a copy of which is hereon written, were notified of the demand and'protestof the same, by written notices directed to Burrell Myers and John L. DeLee, and deposited by me in the postoffice at Clinton, La., this day, October 11, 1842. (Signed) L. Saunders, Parish Judge.”

It was admitted by the defendants that Saunders was dead, and that the signature attached to this instrument, annexed to the protest, was genuine.

To its introduction defendants objected, on the ground that the certificate was inadmissible, it not having the two witnesses required by the statute. The court below sustained this objection, refused to receive the certificate, and plaintiff reserved his bill, attaching to it the document offered and rejected. Plaintiff being thus deprived of the means of showing notice to the endorsers, there was judgment of non-suit against him, and he now prosecutes this appeal.

It is true that, under the statute, the certificate of the notary must be attested by two witnesses, in order to make proof per se. But it has been repeatedly held that the statutes of 1821 and 1827 were not intended to change the commercial law as it stood before their adoption; but to afford in aid of commerce a new, convenient, and permanent means of proof. The legislation was auxiliary, and was not intended to exclude other means, of which the party might choose to avail himself.

Had the notary been living, the plaintiff might have brought him upon the stand, upon objection to the informality of the certificate of notice, and proven by parol the manner in which the notices were given. But if the notary be dead, and the party thus deprived of a personal examination, is he to be left without relief; and is there, to be a total failure of justice, because the notary has neglected his special duty in a matter of form which was necessary to make the certificate authentic evidence ? We think otherwise. Upon proof of Saunders' death, and of his signature to the certificate, the certificate was admissible in evidence under the general rule relative to entries or memoranda, made by third persons since deceased, in the course of a professional duty contemporaneous with the transaction and connected with it.

Thus, where the question was upon the precise day of a person’s birth, the account book of the surgeon who attended his mother upon that occasion, and in which his professional services and fees were charged, was held admissible in evidence. Cited by Greenleaf, Evid. vol. 1, p. 136,

In Poole v. Dicas, 1 Bingham N. C. 649, it was held that an entry of the dishonor of a bill of exchange, made in the usual course of business at the time of the dishonor, in the book of a notary by his clerk who presented the bill, may be given in evidence in an action on the bill, upon proof of the death of the clerk who made the entry. Tindal, C. J. said: We think it admissible, on the ground that it was an entry made at the time of the transaction, and made in the usual course and routine of business, by a person who had no interest to misstate what had occurred, and he cited Doe v. Tenford. There, it was the usual course of practice in an attorney’s office for the clerks to serve notices to quit on tenants, and to endorse on duplicates of such notices the fact and time of service. On one occasion, the attorney himself prepared a notice to quit to serve on a tenant; took it out with him, together with two others prepared at the same time, and returned to his office in the evening, having endorsed on the duplicate of each notice a memorandum of service ont he tenant; two of them were proved to have been delivered by him on that occasion; and it was held on the trial of an ejectment, "after the attorney’s death, that the endorsement so made by him was admissible evidence to prove the service of the third notice.

In Welsh v. Barrett, 15 Mass. 380, the book of the messenger of a bank who was dead, in which, in the course of his duty, he entered memoranda of demands and notices to the promisers and endorsers upon notes left in the bank for collection, was received in evidence of a demand on the maker and notice to the defendant, as endorsers of a note so left for collection. There seems to be no danger, said Parker, C. J., in submitting to the consideration of the jury what a man has actually done and committed to writing, when under obligation to do the act, it being in the course of the business he has undertaken, and he being dead.

In Butler v. Wright, 2 Wendell, 369, it was held, that the memoranda of a deceased notary of the demand and notice of payment of a promissory note, are prima facia evidence of the fact. See also Halliday v. Martinett, 20 John. 173. So in Nichols v. Goldsmith, 7 Wendell, 161, the memorandum of a deceased cashier of a bank was held primd facia sufficient to charge an endorser with notice.

Now, with what propriety can we reject a rule of evidence so well recognised, and so clearly founded in good sense and public convenience ? Is it because we have the statutes of 1821 and 1827? But those statutes were made to aid the mercantile community, not to deprive them of means of proof already within their reach. No one will say that a bank or a merchant is bound to employ a notary to make demand of a note, or give notice to an endorser.

But, then, it is said the plaintiff chose to employ a notary, and the statute instructed him how he was to record his notice. Certainly he was bound to do so, in order to give his employee the full benefit of his services and make the certificate authentic pi'oof, proof per se. But if he does not do so, is the bank, for example, to be in a worse position than if its cashier or its messenger had been employed ? The very facts that Saunders was a public officer is an additional reason for putting his entry on as good a footing as that of the cashier or messenger. For it was an inducement to employ him, that if he properly discharged his official duty, his certificate would be a permanent authentic document, making evidence per se. And it would be a great hardship, that when the public have been induced by his official character to employ him, they should be made the victims of his negligence to such an extent as that his entries or memoranda should, after his death, be on a worse footing than those of a private individual. If we were so to hold, we should be attributing an undue effect to the statutes, and would occasion great alarm in the mercantile commnnity.

In the case of Davis v. Bourgeat, 3d Ann. 121, cited by the defendant, there was no attempt to prove the handwriting of the notary, &c., as in the case of an entiy or memorandum by one deceased, so that the point now considered was neither presented nor decided. So in NeBlieux v. Bullard, 1 R. R. 67.

In the case of the Gas Light Bank v. Nutall, if the present point was raised at all, it was not, so far as we can judge from the report, elaborated at bar nor by the court. If it was the intention of the court to consider an informal certificate as utterly valueless, we are constrained to say that we cannot adhere to that opinion.

Judgment reversed and cause remanded; costs of appeal to be paid by defendants.  