
    NOVEMBER TERM, 1844.
    Grimball and Moss v. Levin R. Marshall.
    The act of 1833, requiring a notary when he protests any note, bill of exchange, &c., to make and certify on oath, a full and true record, &c., does not render it necessary that the record and certificate shall be made out at the time the note is protested.
    "When a notary protests a bill of exchange or promissory note, he should note the facts as he progresses, or within a reasonable time thereafter. And he may certify their truth, under oath, at any time afterwards, and such certificate is admissible as evidence.
    To the November term, 1839, of the Circuit Court of Hinds county, Levin R. Marshall brought an action of assumpsit against Thomas B. J. Hadley, as the maker, and Henry K. Moss and John A. Grimball, as indorsers of a promissory note for $4381.25, dated December 14th, 1837, and payable twelve months after date. The defendants pleaded the general issue. At the trial, the plaintiff read in evidence the note sued on, and a notarial protest thereof. He then proved that, at the maturity of the note, Grimball resided about six miles from Jackson, and Moss about three miles from Brandon in thi§ State, the post-offices at which places were the nearest to their respective residences, and the offices at which they received their letters and papers. He then produced and offered to read to the jury the following written statement, to wit:
    “ State of Mississippi, Adams County. I, James K. Cook, Justice of-the Peace and ex-officio Notary Public in and for said county, residing in the city of Natchez, qualified according to law, do hereby certify that on the 17th day of December, in the year 1838, I went to the Commercial Bank of Natchez, in Natchez, and then and there presented for payment the original note, of which the following is a true copy, together with the indorsement on the back of said note.
    tc £ Natchez, December 14th, 1837. Twelve months after date I promise to pay to the order of Messrs. H. K. Moss and Jno. A. Grimball, four thousand three hundred and eighty-one dollars' and twenty-five cents, value received, negotiable and payable at the Commercial Bank of Natchez. T. B. J. Hadley, Jackson P. O.,
    “Indorsed — ‘ H. K. Moss, Brandon P. O. ; John A. Grim-ball, Jackson P. O. ; L. R. Marshall.’
    “ And I then and there demanded payment of said notfe according to its tenor and effect, and was answered by the Teller of said Bank, that said note would not be paid, and that no funds were deposited in bank for that purpose ; and said note was not paid by any person when payment thereof was demanded as aforesaid : Whereupon I protested said note for non-payment, and notified the parties thereto of said demand, non-payment, and protest, and that the holder of said note looked to them for payment thereojf. Which notices were given at the time and addressed to and directed in the manner following, to wit:
    “ To £ H. K. Moss, at Brandon, Miss.’
    “To £ John A. Grimball, at Jackson, Miss.’
    “ All which notices ’were directed to the parties respectively as aforesaid, were placed by me in the post-office at Natchez in time to go out by the'first mail of 'the day next succeeding that on which said note was protested as aforesaid. Whjch facts constitute as herein set forth a full and true record of all that was done by me in the premises. In testimony whereof I have hereunto set my hand, and affixed my official seal this, 21st day of October, 1840.
    (l. s.) James KL. Cook.
    “ State of Mississippi, Adams County. Personally appeared before the undersigned, Justice of the Peace for the county aforesaid, James EL. Cook, a Justice of the Peace and ex-officio Notary Public, whose name is signed to the foregoing, and made oath that the same is a true statement, in substance and in fact, of his official acts and doings altogether in relation to the premises.
    James K. Cook.
    “ Sworn to and subscribed before me this 2lst day of October, 1840. L. Robetaille, J. P.”
    To which the defendants, Moss and Grimball, objected.' The Court overruled their objection, and permitted it to be to read to the jury ; to which they excepted, and filed their bill of exceptions. The jury found for the plaintiff, and the defendants Grimball and Moss moved for a new trial, which motion the Court overruled, and they again éxcepted, and removed the case to this Court by writ of error.
    
      D. Shelton, for plaintiffs in error.
    I shall assume but one position in this cause, and that is against the admissibility of the notary’s certificate read as evidence to the jury-
    • In that certificate, certain facts are stated and certified-to as appearing on the original record of the notary, of which the- transcript read as evidence purports not to be a copy, but as taking the facts therein stated from the notary’s record. This certificate is sworn to as exhibiting correctly the facts noted on said notary’s record. This oath is made after the certificate, or the date the certificate, was given, and two years after the note was protested.
    If this certificate can be read-, it must be because it is made evidence by some statute of the State. There are but two statutes under which it may be pretended that this certificate is evidence ; the statute of 1837, H. & H. 611, and the statute of 1833, H. & H. 609. To arrive at a proper conclusion as to the admissibility of this certificate, it will be necessary to analyze these statutes ; and in doing so, it will be well to remember that, if the statutes may be so construed as to admit this certificate, it is in derogation of commercial law, common law, and, more than all, of common sense. These statutes must, therefore, be strictly construed. Governed by this rule, I shall proceed to analyze the statutes, thereby to arrive at their true meaning and intent.
    It cannot be read under the act of 1837 : that statute provides that the official act of a notary certified under his hand, and attested by his seal of office, shall be evidence. The same provision is applied, by the same section, to judges,, clerks, and justices of the peace, as to their official acts; as to none of these is any oath whatever made necessary ; but, as to all these officers, the act so certified is not evidence, unless it be an official act. Now, by commercial law, the demand and protest alone are the official acts of á notary. The notice is not, unless our statute changes. Thus, the facts of demanding and protesting, certified as required by the said statute of 1837, would be evidence of those facts ; but of notice, such a certificate would not' be evidence ; in other words, the protest itself, as exhibited in this record; would afford all the evidence of the official acts of the notary that could be introduced under the statute of 1837.
    . Again, if this certificate can be introduced under the statute of 1837, it will be as “ competent and conclusive” evidence, without any oath thereto as with it; for that statute makes no requisition of such an oath. By that statute, the certificate is not required to be made under oath ; but this Court has decided that, without such an oath, such a certificate cannot be read. Planters Bank v. Bernard, 4 How. 105 ; Dorsey v. Merritt, 6 How. 393.
    'The conclusion is, that, by that act, such a certificate as the present is not made evidence.
    But doubtless the position will be taken, that the certificate may be redd under the statute of 1833, H. & H.p. 609. To bring himself within the provisions of that statute, the defendant in error must establish that this certificate is the original record ; for that statute only provides the manner in which the notarial record shall be made out and certified, and then provides that, when so made out and cer? tilled, it (the record) shall be made evidence. To make it evidence, therefore, under that statute, it must be made out and certified in strict conformity with that statute. This certficiate is wanting in many of the requisitions of that statute. 1st. By the statute, this record must be made out and certified at the time of the protesting. The statute says, that, when any notary public shall protest a note, he shall make out and certify his record. The proposed notarial certificate shows, upon its face, that it was made two years after the time of protesting. 2d. At the time of protesting, he shall make out and certify, on oath, the record and certificate. This Court, in 4 How. 105, and 6 How. 393, has decided that the oath here spoken of is not the official oath of the notary, but must be a special oath ; the statute itself shews that this oath must be made when the protest is made ; and, in fact, must be a part of the record contemplated by that statute. The certificate relied on in the present case was not sworn to at the time of protesting said note, as required by the statute, but two years thereafter. 3d. The statute of 1833 enáctá, that “ when so made out,” that is, when made out at the time of the protest, and on oath, the record shall be evidence, and not otherwise.
    
      These objections are neither trivial nor technical, and, independently of the words of the statute, the objections are sustained by legal propriety, and by common sense. It is important that such a record, to be evidence, should be under oath ; otherwise, every rule of evidence would be violated by the admission of testimony not under oath, by hazarding the rights and responsibilities of the citizens of the State upon the good or ill will of a witness who testified without the restraint of an oath. It is necessary that the certificate and oath should be made at the time the protest is made, because then the notary knows the facts which he has performed, and is in no hazard of involuntarily giving false testimony against his neighbor. It is improper that they should be made two years after the facts have transpired, because, before that time, the facts will.be obliterated from his memory, and involuntarily he may give evidence founded upon his general habit in' the premises, which may not be true in fact, or he may involuntarily omit facts that did transpire, but which, at the time of making his certificate, he may have forgotten.
    Hughes, on the same side.
    Several errors are assigned, only one of which will be noticed. It is insisted that the certificate of Cook, the notary, should have been rejected, because there is no evidence, in any part of the certificate, that, at the time he protested the note, he made any record of his actings and doings in the premises, but, for any thing we know, from memory, afterwards made out and sworn to the facts testified by him, which will not do. See Laws of 1833, ch. 70, sec. 2.
    
      C. R. Clifton, for defendant in error.
   Mr. Chief Justice Sharkey

delivered the opinion of the Court.

But a single question is raised in this case, and that is as to the sufficiency of the notary’s certificate to fix the liability of the plaintiffs in érror as indorsers. The notary certifies that he demanded payment, and protested the note on the 18th of December, 1838, and placed notices in the post-office in time for the first mail of the succeeding day, properly directed. But the certificate bears date the 21st day of October, 1840, nearly two years after the protest. The section of the act under which the notary is required to make a record of his proceeding, is in the following language : “ When any notary public shall protest any such instrument as is described in the foregoing section, he shall make and certify, on oath, a full and true record of what shall have been done,” &c., which certificate is declared by the act to be admissible as evidence.

It is insisted that this certificate was made too late ; that the statute requires the notary to make up his record and certify to it, at the time he makes the protest.

If we are to understand the word “ when,” used at the beginning of the section, as meaning at the time, or at which time, then this position would seem to be correct; but it is not to be so understood. By an examination of the statute book, we find many sections beginning with this word, and in no instance is it used to designate the time at which the requirements of the law are to be performed. With this meaning, it would destroy the sense of many sections. It is generally employed as an equivalent to the word “ if” in legislative enactments. Take, for example, the next section in the same act: “When any person &c., residing out of the county of the notary shall so desire, it may be lawful to take the deposition of the notary,” &c. ; and numerous instances might be cited which would fully prove that it is not generally used in the sense contended for. If it is to be understood as pointing out the time at which the notary is required to make out his certificate, it would be impossible to comply with the provisions of this section. The notary is required to make and certify, on oath, a full and true record of what shall have been done according to the facts, stating the time and manner of making the demand and protest, and the manner of giving the notices. He makes the demand and protest on one day, and gives the notices the next day; or, if the next be Sunday, then on the Monday following. To require him, therefore, to make out his record, and certify to it, on oath, at the time he makes the protest, would be requiring him to certify and swear to a matter which had not then transpired, to wit, the giving of the notices. The statute provides that he shall make a full and true record of what has been done, by which is meant, that be shall make a written statement. This statement is not a record* but a deposition taken under a new mode. 7 Howard, 630 A deposition is but a written statement of facts under oath, and it is made from the memory of the witness, and if memory is to be relied on in one instance, why not in others ? In the case of Fleming v. Fulton, 6 Howard, 473, we held that the oath need not be made at the time of making the protest, and yet the statute would seem to require this to be done as a part of the same act. By a fair construction of this statute, it is, no doubt, incumbent on the notary to note down the facts as he progresses, or within a reasonable time afterwards. He may certify to their truth under oath afterwards. This may have been done. We must presume that the notary did his duty in the absence of proof to the contrary, and we have no proof affirmatively showing that he omitted to do so. His certificate, it is true, bears date long after the protest, but the certificate is but the attestation to the truth of the record.

Judgment affirmed.  