
    Browne against The Philadelphia Bank.
    
      Saturday, April 28.
    The certifirial seaM?” primafade th¿dpersonthat ■who uses it and signs the certificate, is a missioned by the
    A notarial protest is evideuce oí notice to the endorser pí a promissory note of non-payment by the drawer.
    In Error.
    THIS action was brought in the District Court for the and county of Philadelphia, by the Philadelphia Bank aSains^ Liberty Browne, on a promissory note drawn by WilHam Smiley and endorsed by the defendant. On the trial, the plaintiffs in order to prove a demand on the drawer, and due notice to the endorser, offered to give in evidence a protest . .. .. * made by Nicholas Diehl, jun. styling himself a notary public, certified under his hand and seal of office. To this evidence the counsel for the defendant objected, but the Court admit- , . ... . , , . . . ted it, upon which an exception was taken to their, opinion,
    
      Phillips, for the pláintiff in error,
    insisted, 1st, that there should have been evidence that the notary was duly appointed by the governor. His own certificate of his official character was not sufficient.
    2d. That the protest was no evidence of notice to the endorser. The official acts of a notary only can be certified. Making a demand on the drawer is within the scope of his authority; but giving notice to the endorser is not, and therefore his protest is not evidence of that fact. It is a collateral matter, and must be proved aliunde. A bill of exchange must be protested, but there is no occasion to protest a pro-, missory note, and no fee is allowed for such a service. It is true, notaries have been in the habit of charging the same ffee as on protesting a bill of exchange, but they are not entitled to it, and their practice does not make the law. For registering the protest of a note, a fee is given, But this refers only to those notes which the laws of other states and countries require to be protested. As therefore the protest of a promissory note is not required by law,, it is not an official act, and a notary is entitled to certify nothing else. So it was decided in Morgan v. Van Ingen, 2 Johns. 204.
    
      J. M. Read, contra.
    In England, the protest of a promissory note is evidence of a demand and refusal. 'Kyd on Bills, 95, 96, 97. 100. The fee bill of the 28th March, 1814, recognises such protests as acts of an official nature, when it gives a fee to the notary for “noting a bill of exchange, note, or thing properly protestable.” And the act of 2d January, 1815, Purd. Dig. 484, makes the protest evidence of all official acts. They were so deemed in practice long be fore that act, and must have been in the contemplation of the legislature when it was passed. If, however, there were any doubt on the subject, it would be silenced by the act of incorporation of the Philadelphia Bank, by which, art. 10, sect. 3, promissory notes are put on the same footing with bills of exchange, the necessity of protesting which is not denied. By the bye-laws and usages of the bank, the notary is bound to give notice to the endorser on the day on which a note becomes due, or on the following morning; to note his proceedings, and report them to the president. This was made part of his official duty by the bye-laws and usages of the bank, and all those who deal with a bank are bound by its bye-laws and usages. Lincoln Bank v. Page, 9 Mass. Rep. 155. He cited, in the course of the argument, Leftley v. Mills, 41). & E. 170. Ro-bertson v. Vogle, 1 Dali. 252. Bank of North America v. Pet-4, £)all. 127. Ball v. Dennison, 4 £)«//. 168. 2 Z)«//. 363. &rg’. Razvle, 114.
   The opinion of the Court was delivered by

Tilghman, C. J.

Two reasons are assigned by the plaintiff in error against the admission of the evidence of the notarial certificate. 1st. That it had not been proved that Nicholas Diehl, jun. had received' a commission of notary public from the governor. 2d. That his certificate was not legal evidence of notice to the indorser of the note.

A notary public is an officer to whom considerable respect is paid by the laws of this State. By the act of 5th March, 1791, he is to be appointed and commissioned by the governor ; he takes an oath of office, holds his office during good behaviour, is authorised to administer oaths, and receive acknowledgments of commercial instruments, make declarations concerning matters done in virtue of his office, and certify the truth thereof under his seal of office. And, moreover, he is enjoined to provide “a public notarial seal, with which he shall authenticate all his acts, on which seal shall be engraven the arms of this Commonwealth,' and it shall have for legend, the name, surname, and office of the notary -using the same, and the place of his residence.” Public convenience requires, that a certificate, under a seal of this kind, should be prima facie evidence, without proving that the person who used it, and signed the certificate, was a notary commissioned by the governor. It ought to be presumed, till the contrary be proved, that no man would dare to assume the office without proper authority. It has been the practice of the Courts, to receive as evidence the certificate of an acknowledgment of a deed, signed by a person styling' himself a Judge, or Justice of the peace, without proof of his having been commissioned by the governor ; and' I think, that upon the same principle, we are bound to receive the certificate of a notary public. Indeed- it has been the daily practice to receive it without objection.

Whether the notarial certificate was evidence of notice to the indorser, depends on an act of assembly passed the 2d January, 1815, by which it. is enacted that “ 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 read and received in evidence of the facts therein certified; provided that any party may be admitted to contradict by other evidence, any such attestation.” It is very well known, that for more than thirty years before the passing of this act, it had been the general usage in this city for notaries to demand payment, and give notice of non-payment of promissory notes; but although their certificates were generally received in evidence by consent, yet, as there was no necessity for protesting a promissory note; the law was not considered as settled, whether a notarial certificate was evidence or not. It is probable, that the putting this matter to rest was one object of the last mentioned act of assembly. This act is to_be construed with reference to our own situation, and to promote our own.convenience ; and this will be most effectually done by extending it to those cases in which our notaries have been accustomed to act officially, whether the notaries of other States and countries had acted in the same manner or not. As to demand of payment, there is no dispute. The notice is what the defendant’s counsel object to, as not being an official act. Strictly speaking, perhaps it may not be so; it certainly, is not considered as'such in all countries. But, within our act of assembly,. it ought to be taken as an official act, because in practice it had been such, and relying on that practice, the holders of notes are not provided with other evidence. I am, therefore^ of opinion, that the evidence was properly admitted by the District Court, and the judgment should be affirmed.

Judgment affirmed.  