
    [Philadelphia,
    April 4, 1825.]
    PARRY & Co. against ALMOND.
    IN ERROR.
    A notary public may be compelled to testify against the truth of his certificate of protest.
    The record of this case being returned on a writ of error to the District Court for the city and county of Philadelphia, it appeared that the plaintiffs in error brought an action against the defendant in error, on a promissory note for one hundred and eighty-five dollars and sixty-four cents, drawn by Robinson and Parry in fa-vour of the defendant, by whom it was endorsed. The note had been discounted in the Commercial Bank of Pennsylvania, and not being paid at maturity, it was taken up by the plaintiffs. On the trial, a protest made by George Heyl, a notary public, was given in evidence; in which he certified, that he had duly notified the endorsers of the said note, of the non-payment thereof The defendant, with a view to show that he had not received due notice, then proposed to examine the said notary, as to the precise manner in which notice had been given. The notary objected to being compelled to give any evidence, which might contradict his official certificate, and the counsel of the plaintiffs objected to any evidence, to be derived from the officer himself, which might tend to destroy the validity of the protest. The court, however, compelled the notary to give the evidence required, and a bill of exceptions was tendered to their opinion.
    
      M‘Ilvaine, for the plaintiffs in error.
    The only question is, •whether a notary public can be compelled to testify against his own official certificate. It is a point which has never been decided by this court. In Stewart v. .Jlllison, 6 Serg. & Rawle, 327, and Craig v. Shallcross, 10 Serg. & Rawle, 377, the notary was sworn without opposition, and no decision was given whether he could be compelled to give testimony. The powers given to notaries public by the act of the 5th of March, 1791, Purd. Dig. 483, and the responsibilities imposed upon them, are great. They are obliged to take an oath of office, and to give bond, with security, that they will faithfully perform the duties of their office, and they are authorized to give certified copies of the records of their offices. By the act of the 2d of January, 1815, Purd. Dig. 484, their official acts, protests, and attestations, are made evidence, with a proviso, that either party may contradict them by any other evidence. By this expression must be meant, any evidence not derived from the officer himself, for to require him to swear in opposition to his own certificate, given under his official oath, would be to involve him in the consequences of criminal delinquency. In civil cases, a witness may be compelled to testify against his interest; but an officer is protected from contradicting his own solemn official acts. A judge may be examined, to prove that he acted in a place out of his jurisdiction, but he is not bound to testify to an act which impeaches his integrity. Jackson v. Humphrey, 1 Johns. 498. Commonwealth v. Gibbs, 3 Yeates, 436. Qalbreath v. Eichelberger, 3 Yeates, 517. 1 Phill. Ev. 41, 225, 226.
    
      Lowber, for the defendant in error.
    The substance of the point to be decided is, whether a notary public, may through his certificate, give evidence without being subject to cross examination. In his certificate, the notary stated that he had given due notice to the defendant, and we proposed to ask him in What manner this notice was given, for the purpose of showing that he was mistaken in his idea of due notice. The act of assembly of 1815, permits the certificate of a notary to be contradicted by any oilier evidence; that is, by any other evidence than the certificate itself. Nothing like corruption was imputed to the officer, and therefore the case came within the well established rule, that a witness is bound to answer any question which does not tend to convict him of a crime, or subject him to a penalty. Baird v. Cochran, 4 Serg. & Rawle, 400. 1 Phill Ev. 222, 225.
    
   The opinion of the court was delivered by

G-ibsoN, J.

The question is, whether a notary public can be Compelled to testify against the truth of his certificate of protest. In none of the cases which hare come before this court, has the notary objected to being examined, and the point, therefore, is of the first impression. The protest is made evidence by the act of the 2d of January, 1815, but with a proviso that it' may be contradicted by other evidence; that is, as I understand it, by evidence dehors the certificate itself. Now, the certificate is not a record; and the objection must therefore rest on a supposed personal exemption from examination, .as to facts which the notary has certified to be true. But in contradicting those facts, he no more subjects himself to answer criminally for official misconduct, than a witness subjects himself to a prosecution for perjury, in contradicting, in his cross examination, facts to which he has before positively sworn. In either case, I can see no objection- to showing by the one or by the other, that he was mistaken in his conception of the fact. The evidence of the notary is admitted on the credit of his official oath; and where notice is proved, as it may be, by a private person who has presented the note or bill for payment or acceptance, his evidence is admitted on the credit of a judicial oath; but in either case there is equal reason for subjecting the witness to further examination, as to particulars. In this respect, they stand alike protected from answering, where to answer would necessarily subject them to a penalty; and what would constitute the privilege of the one, would also constitute the privilege of the other. I am therefore of opinion, that the court did right in compelling the notary to answer.

Judgment affirmed.  