
    Stewart against Allison.
    
      Monday, January 1.
    efTnotaryeStpublic, under his official sealj certify-"no-tier to the in-promissory paymeiiUy the drawer, is evidence of such notice; pear fromP" otherevidence that the notice -was not given peraón»Ry and that he knowledge wh-ithe deriv ed from the ployed byVim forthepuppose, •who told him that he had given the notice, the jury are to judge, from a view of the whole matter, whether notice has been given or not.
    In Error.
    THE bill of exceptions which accompanied the record 0f this cause, on the return of a writ of error to the District . Court for the city and county of Philadelphia, exhibited the following case :
    
      Smith Allison, the defendant in error,
    brought an actionag'a>nst James Stewart, on a promissory note drawn by Hol~ bach Saunders, in favour of Siezuart, by whom it was in- , , , . , _ clorsed. 1 ne pleas were non assumpsit and payment. On t^le trial, the plaintiff, in order to prove notice to the indorser of non-payment by the drawers of the note, gave in evidence ‘ , , ,. , , ~ , a protest made by a notary public, under his official seal, certifying that he had given such notice. The defendant then produced the notary himself, who, on being sworn, testified, the protest was in the handwriting of his son, who was tben on a voyage to the West Indies ; that he, (the notary,) did not give the notice himself, that his son attended to this business for him, and that he had no knowledge of the notice having been given to the indorser • of the non-payment by the drawer, except what his son told him, who said he had given the notice, and had written it in the protest, and'that this had been the practice of doing business among the notaries. The counsel for the defendant contended, that the protest, as explained by the witness, was not’evidence of notice to the indorser of non-payment by the drawers. The counsel for the plaintiff contended, that it was evidence of notice. The Court charged the jury, that it was necessary, in order to make the indorser liable on this note, that notice should have been given to him of non-payment by the drawers, and that it was incumbent on the plaintiff to prove the notice ^ that of the fact of notice, the act of assembly made the protest proof; that it had been contended, that the circumstances given in evidence took the case out of the act of assembly, but the Court were of a different opinion ; and that in order to give the defendant an opportunity of excepting, they charged distinctly that there was evidence of notice, namely, the said protest, notwithstanding the explanation, of which the jury were to judge.
    To this opinion, the defendant’s counsel' took a bill of exceptions, which was sealed by the Court.
    
      P. A. Brovme and Y. Levy, for the plaintiff in error.
    The act of 2d January, 1815, Purd. Dig. 484, declares,, that the oficial acts, protests and attestations of notaries public, certified under their seals of office, may be read in evi- ” dence. Protests of the description of that now in question, we contend, are not official. To charge tbe endorser of a promissory note, the law only requires that he should receive notice of the non-payment of the drawer, which may be given as well by another person as by a notary. It is not, therefore, his notarial character which gives validity to the not ce ; consequently, his mere declaration, under his official seal, that he has done an act which is not peculiar to his office, ought not to be received as proof of the performance of that act. It is an assertion without the sanction of an oath ; for although by the act of 5th March, 1791, Purd. Dig. 484, a notary, before he enters on the duties of his office, is obliged to take an oath well and faithfully to perform its duties, yet, if the protest be not an official act, the oath can have no connection with it. Besides, the oath is to secure the performance of his duties generally, and does not bind him to give in evidence the truth, and the whole truth, relative to every particular transaction, and he is, moreover, not subjected to a cross examination. If, however, the protest was evidence at all, it was only prima facie evidence, and liable to be contradicted. It was directly contradicted by the testimony of the notary himself, who swore that he did not personally give the notice, which, in his protest, he certified that' he did give. By this explanation the efficacy of the notice was entirely destroyed, and if it was evidence before, it then ceased to be so ; for it cannot be pretended that the duty could be performed by any other person than the notary himself. He is an officer of trust, in whom a personal confidence is reposed, and who could not delegate his authority to a deputy. Cro. Eliz. 187. Freem. 429. Rex v. Lenthall, 3 Mod. 150. Godolphin v. Tudor, 6 Mod. 234. Notice by his son, was not equivalent to notice by himself, and his protest ought not to certify any thing that cannot be supported by his oath. The Court did not admit the protest as evidence merely, of notice, which is all that the act of assembly, in its mo'st extended sense, authorises, but as proof of- that fact; and thus the jury were misled into a belief that, notwithstanding the contents of it were contradicted, it was to be considered as establishing the fact of notice. In this, we say, there was error. If there was not, the notary is m.ade completely the judge of the facts, and all questions of notice are cut up by the roots.
    
      Randall for the defendant in error.
    The only question below was, whether the indorser had received the notice required by law, and of this the protest was prima facie evidence. That it was an oficial act, within the meaning of the law, does not admit of a doubt. [The Court informed Mr. Randall that he need not speak to that point.] There was nothing in the nature of the duty which made it necessary that it should be performed by the notary in person. It was merely ministerial, and might be performed by a deputy. Tillotson v. Cheetham, 2 Johns. 63. 10 Johns. 223. The certificates of prothonotaries and sheriffs, in a variety of instances, state acts as performed by themselves, which, in fact, have been performed by their agents. The course pursued. in this instance, was conformable to the usual- practice of notaries, and was rendered necessary by 'the multiplicity of their business, which made it impossible to give such notice personally in every case.
    It is too late for the plaintiff in error.to object now to the admission of the protest as evidence: He ought to have excepted before it was read to the jury. After it had been laid before them, it was certainly evidence. The degree of weight they were to attach to it, was another matter. Whether the Court told the jury that the protest was to be received as evidence,-or as proof of notice, is not material. In common understanding the words signify the same thing. But it is unnecessary to institute á critical enquiry into the subject, because,- as the question of notice was one of fact merely, the most that can be said is, that the Court annexed more importance to the evidence than it deserved ; and nothing can be better settled, than that even an erroneous opinion, on a matter of fact, is not the subject of a writ of error. The Court left the decision of the question entirely to the jury, that they might weigh the certificate against the oath in Court, and form an opinion on a view of the whole matter. •In doing this, they did exactly what w.as their duty, under such circumstances.
   Tilghman, C. J.

This action was brought by Smith Allison, the plaintiff below, against James Stéwart,. the plaintiff in error, on a promissory note, of which- Allison was indorsee and Stewart indorser. The plaintiff gave in evidence a protest by Benjamin Nones, notary public, under his official seal, in which protest it was certified that .the. said notary had given notice of the non-payment of the note to the defendant. The defendant then called the notary himself, who was sworn as a witness without opposition, and deposed, “ that the protest was in the handwriting of his son, then absent on a voyage to the West Indies ; that he, the said Nones, did not give notice himself, but his son, who attended to that business for him; that he had no knowledge of notice having'been given -to the indorser ofthe note of non-payment by the drawers, except what his son told him, who said that he had given the notice, and that this had been the practice of doing business among • the notaries.” This evidence having been given, the counsel for the defendant prayed the Court to charge the jury, that the protest, explained as it had been by the testimony of Benjamin Nones, was not evidence of notice of non-payment of the said note to the indorser, and that as no other evidence of notice had been given, the verdict ought to be for the defendant. "On the- other hand, the counsel for the plaintiff prayed the Court to charge the jury that it was evidence, and that the verdict should be for the plaintiff. The Court, however, not complying exactly with the prayer either of one or the other, charged the jury in the following words: “That there was evidence of notice, namely, the said protest, notwithstanding, the explanation of which, the jury were to judge.”

It seems to me, that both parties asked the Court for too much. Evidence had been given on both sides, without opposition. The cause turned on a matter of fact, (notice to the defendant); and that being the case, the Court had no right to direct the jury to whom they should give their verdict. By the act of 2d January, 1815, “ the official acts, protests, and attestations of all notaries public, (acting by the authority of this Commonwealth) certified according to law, under their respective hands and seals of office, may be readand received in evidence of the facts therein certified. Provided, that any party may be permitted to contradict, by other evidence, any such certificate.” In this case, the official protest of the notary had been given in evidence by the plaintiff, and' parol evidtnee had been given by the defendant of certain things, tending, in his opinion, to take off the effect of that certificate. Mho, then, was to judge between these two pieces of evidence ? Certainly not the Court, but the jury. It was very possible that the jury might give more credit to the official certificate, than to the oath of the notary. A notary may be tampered with after giving his certificate; or the jury might think that the certificate and the parol evidencé were not inconsistent. In my opinion, then, the Court was right in telling the jury as they did, that the plaintiff was not entitled to recover unless notice of non-payment was given to the defendant; that the notarial certificate was legal evidence, on which, together with the parol evidence, the jury were to decide whether notice had been given or not. I am, therefore, of opinion, that the judgment should be affirmed.

Gibson, J.

The Judge who tried the cause, it seems to me, fully met the point urged by the defendant below, and expressed his opinion without ambiguity. The counsel insisted “ that the protest, taken xoith the explanations given by the said. Benjamin Nones, (the notary) was not evidence of the non-payment of the note by the drawer on which the Judge charged, “ That, of the fact of notice, the act of assembly made the protest proof; that it had been contended that the circumstances given in evidence, took the case out of the act of assembly, but the Court were of a different opinion, and, in order to give the defendant an opportunity of excepting, charged that there was evidence of notice, (I use the very words of the bill of exceptions) notwithstanding the explanation^ of which the jury were to judge.” Now, from all this, I broadly dissent. The assertion, in a protest, of a fact founded on hearsay, which would be incompetent to be heard from a witness attesting in the ordinary way, is not made competent and legal by the act of assembly. A protest is prima facie evidence of the non-payment^ of a promissory note, only by force of the act of assembly, and is open, both to explanation and contradiction. The value of the distinction between explanation and contradiction will appear hereafter. Then what change in the law of evidence did the act of assembly mean to produce ? Evidently nothing more than to render that competent under the sanction of an official oath, which would, otherwise, have to be attested by an oath taken in the presence of the Court and jury ; thus substituting the oath of office, for the violation of which the notary would incur no temporal penalty, for the customary oath in Court, which, if corruptly taken, will, every one knows, render the witness obnoxious to the penalties annexed to the crime of perjury. The degree of sanction, therefore, being greater under the judicial oath, it may reasonably be inferred the Legislature never intended that the officer should authenticate, by his certificate of protest, what he would not be permitted to state in the ordinary mode of attestation. It is agreed, on all hands, that the protest is not conclusive. Here, the very officer who made it, being called to give explanatory evidence, informs the Court, that, personally, he knows nothing of the matter ; that he derived all his information from his'son, who attended to the whole business for him, who wrote the'protest, and who merely informed him that he had given the notice as stated in it; and on this it is urged to the Judge that the protest, thus explained to be an assertion of the fact on no better ground than hearsay, does not continue to be legal and competent evidence of the fact asserted; and he instructs the jury that it does. Now put the case of a witness who has, in his direct examination, sworn positively to a fact, but from whom, on being cross examined, it comes out that he personally knows nothing about the matter, having obtained all his information from a person on whose veracity he thinks he can depend ; ought not the Court to direct the jury that.the whole of his evidence, taken with the explanation given, is incompetent, and to go for nothing ? The mind is somewhat puzzled in viewing this as a parallel case, by considering the possibility of the officer having sworn falsely, and that his protest might be competent in contradiction of his parol evidence. In that point of view, it undoubtedly would ; but was that the decision of the Court ? The direction of the Judge is to be taken in reference to the subject matter of the question submitted, which was, not whether the plaintiff should be precluded from setting up the protest as true, in opposition to the notary’s parol evidence, but whether the explanatory effect of that evidence, hypothetically assuming it to be true, was not, in point of law, to destroy the competency of the protest. A witness stating, in his cross examination, that the facts he had detailed were given at second hand, may also deviate from the truth ; yet the effect of his cross examination on the competency of his direct evidence will, like the effect of the parol evidence on the competency of the protest in the case at bar, present distinct questions, as it is viewed as a true explanation, or as a perjury ; and what would be a proper answer to the one, would be error if given to the other. The counsel could go to the Court only on a question of law ; for a question of fact, involving the truth .of the parol evidence, was exclusively for the jury. The question was, as to the legal operation of the facts, admitting them to be true ; for it did not require a decision to establish the position that they ought to have no effect if they were untrue. The Judge himself thought he was deciding on the legal effect of the facts; else why talk of giving the counsel an opportunity to except, which he knew they could not do'for error in matter of fact. Here the notary had thought himself authorised to entrust the active part of the business to his son, whose acts he thought he was justifiable in adopting, and having declared this on oath, the question was, not whether.it was contradiction of the protest, but, what was its effect as explanation. I think, therefore, I am not deceived when I suppose the Judge meant, and the jury understood, that the assertion of notice in the protest, though founded on hearsay, and, therefore, not competent when coming from a witness deposing in the •ordinary way, was, nevertheless, competent evidence of the fact asserted, by force of the act of assembly. But the Legislature surely never intended to permit an officer to authenticate by his certificate, a fact to which he would not, after being'examined touching his means of knowledge, be permitted to swear, otherwise they would not have made the protest merely prima facie evidence, but conclusive. Now, if the protest is still to be evidence after it has been disproved, it must be because it is to have some operation,' and that, too, contrary to the truth of the fact: but that is precisely the character of conclusive evidence,'which the Legislature were careful not to impart. It is not claimed. How, then, can it be competent evidence, and yet have no legal effect irí proving the fact, of which it is said to be evidence ? Can it be that delivering a notice to a messenger, like putting a letter into the post-office, where the parties do not live in the same town-, is constructive notice, whether it be actually received or not ? That would bring out the same result as if the protest were conclusive ; for constructive notice has nothing to do with the truth of the case. In rejecting the protest for irregularity of the officer, there is no hardship on the holder, for he may either give the notice himself, or use the notary as an instrument; and if, for the sake of convenience, he resorts to the latter, it is better he should suffer by the negligence of his own agent, than a person who had no concern in selecting him. There is nothing to induce a suspicion that the’ Legislature knew of, much less that they intended to sanction the loose practice of the notaries in this particular. The confidence supposed to. be reposed in the truth and integrity of those officers by the executive who appointed them, is the ground on which the Legislature rested the substitution of their certificate, for the ordinary judicial evidence of the facts asserted in it; and it therefore, never could have intended to permit them to delegate this high personal trust to a stranger acting without oath or even official responsibility. The enabling provisions of the act are, in truth, very scant, and reach a case of this kind only by construction; and although I perfectly coincide in the propriety of this construction, yet, as the introduction of the protest as -evidence at all, is an extraordinary interposition of official power, I hold the notary competent to certify only what he personally knows to be true, and not what he may conjecture to be so, from the relation of others. I am for reversing the judgment.

Duncan, J.

I entirely concur with the Chief Justice. The notarial certificate is made evidence—it may be disproved ; but the jury were the proper'judges whether it was so or not. An officer impeaching his own official act, the jury might not fully believe ; they might weigh his particular account on oath, against the official document under his seal; he might be mistaken after the lapse of many years ; he might Confound one transaction with another. It was for the jury to decide on their oath against the certificate. If the Court had decided that the certificate was conclusive evidence, notwithstanding the explanation or contradiction, this would have been usurping the office of the jury, and would be error. When they leave it to the jury to judge of it, I must understand them as saying, we leave you to judge, from the whole evidence whether demand was made in due time. I do not give any opinion whether a notary public could be compelled to give evidence, to contradict his notarial certificate, for this question does not arise. The protest was received without opposition; the witness examined without objection, either by himsejf or the plaintiff. Both these being given in evidence without objection, the one to prove the demand, the other to disprove it, what else could the Court do than leave it to the jury ? The jury may have decided against the weight of the evidence. It was for the Court who tried the cause, if they thought fit, to grant a new trial. This is not what this Court can do ; they can only say whether the Coiirt erred in leaving this matter of fact to the jury to judge of. I am of opinion they did not err; and however strongly they might have expressed themselves to the jury in favour of the protest, the documentary evidence, or in favour of the verbal evidence, still to the jury it must-be left to judge which they would give credit to. The protest of itself was made evidence by the act of 2d January, 1815, of the facts therein certified ; but the party is permitted to contradict it by any other evidence ; itstood for proof, donuprobatur in contrariant: but whether it was destroyed, was clearly for the jury to judge.

Judgment affirmed.  