
    NOVEMBER TERM, 1845.
    Stephen S. Booth et al. vs. Matthew Watson.
    The notarial certificate of a deceased notary, purporting on its face to be made out and signed several months after the protest of the note, is admissible in evidence, even though it be proved that such notarial certificate was the only record ever kept by the notary of his acts in the premises.
    In error from the Warren circuit court; Hon. George Coalter, judge.
    Matthew Watson sued Stephen S. Booth as the maker, and Mark Valentine as the indorser, of a promissory note, for the sum of $ 12,792, dated June 1, 1836, and payable on the fourth day of December, 1838, at the Planters Bank at Vicksburg.
    At the trial, after reading the note sued on, the plaintiff read the following notarial certificate:
    
      “ State of Mississippi, {
    
    
      Warren County. $
    “I, E. H. Maxcy, a justice of the peace for said county, and, ex officio, notary public, residing in Vicksburg, qualified according to law, do hereby certify, that on the 4th day of December, in the year 1838,1 went to the Planters Bank, at Vicksburg, and then and there presented for payment the original promissory note, of which the following is a true copy: [There followed in the certificate a literal copy of the note sued on, which it is not deemed necessary to insert,] and I then and there demanded payment of said promissory note, according to its tenor and effect, and was answered by the teller of said bank that the said note would not he paid, and that no funds were deposited in said bank for that purpose, and the said note was not paid by any person when payment thereof was demanded as aforesaid. Whereupon I protested said promissory note for non-payment, and notified the parties thereto of said demand, non-payment and protest, and that the holder of said promissory note looked to them for the payment thereof, which notices were given at the times and in the manner following, to wit: To Mark Valentine, directed to him at Warrenton, Miss., &c. &c.
    “ All of which written notices, directed to the parties respectively, as aforesaid, were by me deposited in the post-office at Vicksburg, in time to go out by the first mail of the day next succeeding that on which said promissory note was protested as aforesaid, which facts, then and there noted by me on my official record, 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 common seal of office, this 2d day of May, 1839.
    
      “ E. H. Maxcy, [seal.]
    
      J. P. Ex officio Not. Pub.
    
    
      “ State of Mississippi, )
    
    
      Warren County. \
    
    “ Personally appeared before the undersigned justice of the peace for said county, the abovenamed E. H. Maxcy, who made oath that the foregoing record and certificate contain the truth, to the best of his knowledge and belief.
    E. H. Maxcy.”
    
      “ Sworn to and subscribed before me, on the 2d day of May, 1839. Wm. EveRett, J. P.”
    J. S. Yerger, Esq.
    then proved that the signature to this certificate, and the affidavit, of E. H. Maxcy, was in the handwriting of said Maxcy, who was a notary public at the time the note was protested and the certificate sworn to. He also proved that Maxcy was dead, and that that portion of the certificate which stated the notices of protest and the mode of delivery, was in the handwriting of Maxcy, who made out this certificate or record, at the request of the witness, who informed Maxcy that he intended to bring a suit on the note. This certificate was made out about five months after the protest of the note. He also proved that Valentine, at the date of the protest, lived near Warrenton, which was his nearest post-office.
    The plaintiff introduced a great deal of other testimony, including a deed of indemnity from Booth, the maker, to Valentine, the indorser, against this indorsement; but in view of the decision of this court, it is not deemed requisite to notice them.
    No objection was made at the time of the introduction of this certificate, to its being read to the jury; but the defendant’s counsel asked the court to instruct the jury to disregard it, which it refused to do, but told the jury, if they believed it to be true, it was evidence of demand and payment.
    The defendant below, after verdict against him, prosecuted this writ of error.
    The action of the court in refusing to reject this certificate is one of the errors assigned.
    
      John I. 'Guión, for plaintiff in error.
    The court erred, in refusing to give the third instruction asked for by defendant, and giving the instruction, “ that if they believe the paper certified by Maxcy, as his record, to be true, it is evidence of demand and payment.” That paper was evidence, or was not evidence. If it was not competent evidence, its truth or falsity could not make it evidence. The objection to the paper was, that it was not a copy of Maxcy’s record, proof having been, introduced to show that he kept no record of his acts in reference to the note sued on. It was admitted as a certificate from his, thenotary’s, record and not as a memorandum in the handwriting of a dead notary; the truth or untruth of the certificate, was not the question before the court, and the charge of the court was well calculated to mislead the jury. The statute requires that notaries, shall keep fair registers, of their official acts, (How. & Hutch. Stat. 434,) and when he shall protest, &c. he shall make and certify a full and complete record, &c.; Ibid. 609. I am aware that several decisions have been made by this court, declaring notarial certificates of protest under oath, competent evidence of the facts stated in.them; but in all those decisions it was taken for granted, that the notary had performed his duties according to law, and had kept a notarial record. In the case oí Fleming et. al. v. Fulton¡ 6 How. 473, the court clearly recognize the principle, that the certificate must be a copy of the record, kept by the notary. In the case at bar, the evidence offered by the defendant, established the facts, that Maxcy, the notary, kept no record of his acts, and that the certificate, sworn to by him, was a loose statement made from memory, at the request of the plaintiffs’ attorney, six months after the protest. It was clearly, not such a certified copy of the notarial record, as is recognized by the statute and the decisions of this court, as competent evidence of demand and notice.
    
      George S. Yerger, for defendant in error.
    Tt is believed that there is no error in this record. Valentine was chargeable as indorser. Because the notarial record proves demand and notice.
    The objection to the notarial record is that it appears to have been made out, and sworn to, after the protest. This point was decided by this court, and fully settled in'the cases of Fleming v. Fulton, 6 How. 473, and Grimball & Moss v. Marshall, 3 S. & M. 359.
    The notarial record in this case states, as ffi the case in 6 How. 473, and 3 S. &. M. 359, that the note was protested on the day set forth, and notice given as stated, and that the facts were then and there noted, &c. in the official record.
    The defendant Valentine, offered to prove that E. H. Maxcy kept no notarial record in relation to this note, other than the record offered in evidence. The above cases settle this point also.
    But this evidence appears not to have been objected to.. The evidence offered was not sufficient, I presume, to establish any such fact, as it is not set out -in the record, and the jury found for the plaintiff.
    But what constitutes the notary’s record? Any memorandum made by him, that on such a day he protested the note, and gave notice at such and such time, whether it be entered in a regular book or not, is a record, in the meaning of the statute. He could make it out at any time from his notes. See above cases.
    But the statute is conclusive; it makes the record made out and sworn to (not a copy) evidence. This record may be made out at any time from notes or memoranda made by the notary, without a formal record. See How. & Hutch. 609, ,and cases above. But, as before remarked; the evidence does not show, because it is not set out, that no formal record was kept, and the case is literally governed by the one referred to in 6 How. and the one in 3 S. & M. See also 5 How. 179.
   Mr. Justice Clayton

delivered the opinion of the court.

This was anaction of assumpsit against the makers and indors-ers of a promissory note. The resistance to a judgment is offered by Valentine, the indorser.

The principal objection is to the proof of notice. This proof consists of the notarial certificate in due form, showing that the demand was made, and the notices given at the proper time. But the objection is that the notarial certificate itself was not made out at the proper time. The evidence on this point was, that the notary kept no record of his acts, in giving notice upon this note, other than the one produced in testimony, showing that the notarial certificate was made out, and sworn to, five or six months after the protest. The introduction of the certificate was not objected to, but the counsel for the defendants asked the court to instruct the jury, that they must reject the evidence. This the court refused to do, but'charged the jury, that if they believed the paper certified by the notary to be true, it was evidence of demand and notice.

This question is not new in this court. In 7 How. 630, the court says “that the notarial certificate as to notice, is but a deposition taken in a new mode for the sake of con venience. The statute gives it only such credit, as the witness would be entitled to, if present.” In Grimball & Moss v. Marshall, 3 S. & M. 359, it was again decided, that the certificate need not be made out at the time the note is protested ; and the proposition is repeated that it is a mere deposition. This being the case, we can see no error in the charge of the court.

If the witness had been present, and had stated that he made no written memorándum of the,time when he gave notice, yet had stated that he gave it at a certain time and place, it would have been the province of the jury to determine whether his evidence was entitled to belief, and to decide the case accordingly. This is the effect of what was done. The notary himself was dead.

This being decisive of the case, the other point,-in regard to the deed of indemnity, need not be determined.

The judgment of the court below is affirmed.  