
    Scott v. Brown, Appellant.
    
      Promissory notes — Action against endorser — Protest—Certificate of notary — Proof of notice — Negotiable Instrument Act of May 16,1901, P. L. m.
    
    In an action by the holder of a promissory note against an endorser, where plaintiff offers the note in evidence, together with the certificate of the notary by whom protest has been made, the certificate stating that the notary had protested the note and notified the maker and endorsers of the presentation, demand and refusal, and this is followed by proof that after protesting the note, the notary had mailed, among others, a notice to the defendant endorser at a certain post office, the plaintiff is not under obligations to furnish further proof that the post office station named was the post office to which notice should have been sent under the Negotiable Instrument Act of May 16, 1901, P. L. 194, and in the absence of evidence by the defendant, the court acts properly in directing a verdipt for the plaintiff. The certification of the notary that he had given notice to the defendant raised the presumption, since his act was an official act, that it was properly performed and his certificate, standing alone, entitled the plaintiff to go to the jury. Further proof that the notice was mailed to a certain post office station was not contradictory of nor inconsistent with the notary’s official certificate of notice to the endorser and did not destroy the prima facie effect of the certificate nor repel the presumption to which it gave rise. ,
    
      Argued February 10, 1913.
    Appeal, No. 111, Jan. T., 1912, by defendant, from judgment of C. P. Bucks Co., Nov. T., 1910, No. 26, on verdict for plaintiff by direction in the case of Charles B. Scott, doing business as Charles B. Scott Company, v. Charles Brown.
    Before Fell, C. J., Brown, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Assumpsit against endorser on promissory note. Before Staples, P. J., specially presiding.
    The opinion of the Supreme Court states the case.
    The note in question was as follows:
    $1,600. Scranton, Jan’y 7th, 1910.
    One month after date I promise to pay to the order of Charles Brown Sixteen Hundred and 00-100 Dollars at Traders National Bank Scranton.-
    Value received.
    Due Feb. 7. (Signed) Paul Brown.
    (Endorsed) Charles Brown.
    Paul Brown.
    C. Ezra Scott, (erased with ink)
    The court directed a verdict for the plaintiff and judgment thereon.
    
      Errors assigned were in directing a verdict for the plaintiff and refusing to enter judgment for defendant non obstante veredicto.
    
      Isaac J. Vanartsdalen, for appellant.
    Defendant having set up in his affidavit of defense want of notice or protest and dishonor, the burden was on the plaintiff to prove legal notice: Link v. Bergdoll, 35 Pa. Superior Ct. 155; First National Bank v. McBride, 230 Pa. 261.
    Plaintiff must prove that the post office to which the letter was addressed was defendant’s post office as set forth in above act. Jury, cannot infer it without positive evidence of the fact: Fonseca v. Hartman, 84 N. Y. Supp. 131; Crawford v. Branch Bank of Mobile, 7 Alabama 210; Turner v. Rogers, 8 Indiana 139; Sullivan v. Deadman, 19 Arkansas 484; Stiles v. Inman, 55 Mississippi 469.
    April 21, 1913:
    The general principle is that where a notice is mailed party addressed is presumed to receive it, but no such presumption arises unless it is shown that the party, receives mail at that post office: Henderson v. Carbondale Coal Co., 140 U. S. 37.
    
      Geo. Ross, of Yerkes, Ross & Ross, for appellee.
    The certificate was conclusive: Farmers’ National Bank v. Marshall, 9 Pa. Superior Ct. 621; Zollner v. Moffitt, 222 Pa. 644; Lloyd v. McGarr, 3 Pa. 474; Odd Fellows’ Savings Bank v. Miller, 179 Pa. 412; Frick v. Barbour, 64 Pa. 120.
   Opinion by

Mr. Chief Justice Fell,

At the trial of an action by the holder of a promissory note against an endorser the plaintiff offered the note in evidence together with the certificate of the notary by whom protest had been made. It appeared from the certificate that the notary had presented the note at the bank where it was payable on the day that it was due and demanded payment thereof which was refused, that he had protested it and notified the maker and endorsers of the presentation, demand and refusal. This was followed by proof by the notary that after protesting the note, he handed it to his clerk with instructions to mail notices which he furnished for the purpose to all parties to the note, to such addresses as he had obtained or had the means of obtaining. And by further proof by the notary’s clerk that he had within an hour of the dishonor of the note mailed notice of the presentation, demand and dishonor of the note to the defendant at Fallsington, Bucks Co., Pa., with notice that he would be looked to for payment. The defendant offered no testimony, but presented a request for binding instructions, which was refused, and after verdict hie moved for judgment non obstante veredicto on tbe ground that there was no proof that Fallsington was tbe post office to wbicb notice should have been sent under the Negotiable Instrument Act of May 16, 1901, P. L. 194. Section 108 of tbe act provides that where a party to a note has not added an address to bis signature and notice is sent by mail it must be sent “(1) Either to tbe post office nearest to bis place of residence or to tbe post office where be is accustomed to receive bis letters, or (2) If be live in one place and have bis place of business in another, notice may be sent to either place, or (3) If be is sojourning in another place, notice may be sent to tbe place where be is sojourning.”

Tbe plaintiff could have gone to tbe jury on bis offers of tbe note and tbe notary’s certificate of protest without further proof and tbe single question raised by tbe appeal is whether having shown by bis witnesses that tbe notice was mailed to Fallsington, be was required to go farther and prove that this was tbe proper post officé to wbicb to mail it under tbe Act of 1901. Tbe Act of January 2, 1815, 6 Smith’s Laws 238, wbicb made tbe certificate of a notary evidence of the facts therein contained was extended by tbe Act of December 14, 1854, P. L. (1855) 724, so as to include notice to drawers, acceptors and endorsers in respect to tbe dishonor of bills and promissory notes. It has been uniformly held in our cases that tbe certificate of a notary of notice of protest is prima facie, evidence of tbe facts stated therein and that in tbe absence of contradictory proof it is conclusive. In Kase v. Getchell, 21 Pa. 503, it was said that notice to an endorser is part of tbe official duty of a notary and when duly certified and not contradicted or questioned, the presumption that always arises in favor of official acts requires us to bold that it was given according to law, and in Starr v. Sanford, 45 Pa. 193, that tbe Act of 1854 makes such a certificate prima facie evidence and unless rebutted it must have a conclusive effect.

Tbe notary certified that be bad given notice to tbe defendant. Presumably, since bis act was an official act, it was properly performed and bis certificate stand-. ing alone entitled tbe plaintiff to go to tbe jury. If tbe notary bad certified that be gave notice by mail to Fallsington, tbe same presumption as to regularity and legality would have arisen for presumably be sent notice to tbe right place. Proof that tbe notice was mailed to Fallsington was not contradictory of nor inconsistent with tbe notary’s official certification of notice to tbe endorser and it did not destroy tbe prima facie effect of tbe certificate nor repel tbe presumption to wbicb it gave rise.

Tbe judgment is affirmed.  