
    Joshua R. White, et al. vs. Edward Englehard.
    A notarial protest of a promissory note, and certificate of notices, purporting to have been made by a notary in Louisiana, verified by his affidavit, taken without notice, cannot be read as evidence, upon the trial of a cause, in this state.
    Our statute, H. & H. 609, sec. 33, relates exclusively to the acts of notaries of this state.
    If a judgment be founded on improper evidence, anew trial must be granted.
    EeRor to the circuit court of Covington county.
    The facts sufficiently appear in the argument of Mr. George S. Yerger, and the opinion of the court.
    
      George S. Yerger, for the plaintiffs in error.
    This was an action of assumpsit, against the plaintiffs in error, as makers and indorsers of a promissory note. The only evidence in the cause, to charge the indorser, was the protest of a notary public in Louisiana, stating that he had made the demand; and his protest, or notarial record, stated also, that, he gave notice, &c. To reading the notarial certificate in evidence, the defendants objected, but their objection was overruled, and it was admitted.
    1. This case, as to the indorser, ought to be reversed. It was clearly illegal to admit the notarial record of a notary in Louisiana, to be read as evidence to prove notice ; and in fact, in this case, it was the only evidence of notice.
    In cases of foreign bills, the protest is evidence of the presentment and dishonor; but even in cases of foreign bills, it is no evidence that notice of dishonor was given; and the furthest the courts have gone is, where the notary is dead, and he has certified that he gave notice, these entries, made in the course of business, are received as evidence. But when he is alive, his testimony must be taken, except in cases where the law has been altered by statute. Vide Nichols v. Webb, 8 Wheat. Rep. Bernard v. Planters Bank, 4 How. Rep.
    2. The question, then, is, whether the act of 1833 (How. & Hut. page 609,) applies to notarial certificates made by foreign notaries, or notaries residing out of the state. That it does not is clear from the wording of the act; because both sections speak of their being subpoenaed, and compelled to attend in person, the courts in the county of their residence, when thereto required. This act, therefore, can only apply to notarial records, made by notaries in Mississippi. That it was competent for the legislature to have extended it to foreign protests, is, perhaps, true; but, independent of the express intention, manifested on the face of the act, that its application was to be confined to notarial records in this state, the law is settled, that a legislative act will be presumed to apply to cases arising in the state, unless it is expressly extended to cases out of the state. 14 Peters’s Rep. 74. 2 Hill’s N. York Reports, 227.
    ■ W. Yerger, for the defendant in error.
    The bill of exceptions, taken in this case, was taken only to the reading of the note to the jury. One of the reasons assigned, why the note should not be read, was, that “no evidence was offered to the court or jury, to prove a demand of said note, or notices of protest, except the protest and certificates of the notary, &c.” The party had a right to read his note to the jury, without any evidence of demand or notice being given. The bill of exceptions does not state, nor does it anywhere appear, that the notarial certificate and protest were read to the jury; and if read to the jury, there was no exception taken to the reading of the same. However illegal testimony may be, unless objected to, a party may read it. A party may offer evidence and yet not read it; the bill of exceptions recites further, “ which objection,” &c., that is, the objection to reading the note was overruled, “ and the note was permitted to be read to the jury.” It clearly, then, appears, that the objection was taken only to the reading of the note; and it does not appear that anything but the note was read. When the defendant objected to the reading of the note, “ because no evidence was offered, except protest, &c.” the circuit judge might very well say, and this court must presume he did say, as in fact the law was, the plaintiff may read his note, without any evidence of demand, &c., leaving him to make out the remainder of his case by competent proof of demand and notice, which the court is bound to presume, he did do, as he got a verdict, and no bill of exceptions was taken to any other testimony, nor any motion made for a new trial; The points to which I wish to call the attention of the court, are these : 1. The plaintiff only offered to read the note. 2. The defendant only objected to the reading of the note. 3. It does not appear that anything but the note was read; and 4. If anything else was read, the defendant did not object or. except thereto, all of which clearly appears, by reading over the bill of exceptions.
   Mr. Justice Clayton

delivered the opinion of the court.

This was an action against the makers and indorsers of a note, which was payable at the branch of the Union Bank of Louisiana, at Covington, in that state. Upon the trial, the plaintiff offered in evidence to the jury, a copy of the notarial protest, and certificate of notices, purporting to have been made by a notary in Louisina, verified by bis affidavit, taken without notice. The reading of these was objected to, by the defendants, but the court permitted them to be read. To this a bill of exceptions was filed, there was a verdict and judgment for the plaintiff, and writ of error to this court.

We know of no principle of law, which justified the admission of this testimony. If it had been a foreign bill of exchange, then the .protest of the notary would have been evidence. 2 Peters, 179. But this is not so, in regard to any other instrument. Our statute, H. &> H. 609, sec. 33, relates exclusively to the acts of notaries of this state. Although a part of the statute might favor a different construction, yet upon the whole, taken together, there can be no doubt that this is its true meaning. The certificate of the notary was not, of itself, evidence, nor did his ex parte affidavit render it so. The only competent evidence would have been his deposition, taken according to law, or a viva voce examination, in open court.

The judgment thus founded, upon improper evidence, must be reversed, arid a new trial'granted: We cannot concur in opinion with the counsel, that the bill of exceptions does not raise the point in the cause. Its language is by no means technical and exact, yet we think it does present this question for our consideration, and that we cannot pass it over.  