
    MANNING F. LAWSON, Plaintiff and Respondent, v. STEPHEN R. PINCKNEY, Defendant and Appellant.
    1 NOTES, ETC. PAYABLE IN ANOTHER STATE, EVIDENCE OF PROTEST, ETC., OF.
    1. Certificate of a notary public of such other state AS TO PROTEST, ETC.
    
      (a) Competency of.
    
    ■ 1. A certificate authorized and required by the laws of another state is competent evidence as to the matters in respect whereof it is so authorized and required.
    (5) limitation of. '
    
    1. Not limited by the laws of this state to cases where the defendant fails to annex to his answer an affidavit that no notice of protest or presentment was ever given to him.
    (c) Sufficiency of.
    
    1. If the statutes of another state prescribe the form of the notarial certificate, or that it shall contain certain matters, and then that a certificate in such form or containing such matters shall be proof of presentment, refusal to pay, and notice to endorsers such a certificate will be proof of such matters in this state.
    2. If there are no such statutes, the notarial certificate must set forth the facts, showing the manner in which the note was presented and payment demanded, and notice thereof given, specifying the acts done by the notary; , and if the facts thus specified show either a presentment or demand, or giving of notice in any mode other than . as recognized by the common law, or the statutes of this state, then either the certificate must in some way show that the mode adopted was according to the laws of such other state, or the law of such state authorizing the mode adopted must be proved as a fact on the trial.
    3. “ Of all which I duly notified the endorsers, ” a certificate containing these words is not sufficient under the common law or the statutes of this state.
    
      H. APPEAL.
    1. Insufficiency in evidence below ; as to supplying on APPEAL.
    
      (a) Written and unwritten laws of another state.
    
    1. Must be proved iu the court below. c
    2. Neither the statutes, nor the reports of decisions of the courts, of such other state (when not proved on the trial) can he considered on appeal for the purpose of determining the law of such other state.
    Per Sedgwick J., Monell, Oh. J., concurring.
    2. Modifying judgment on.
    
      (a) Affirming as to part, and reversing and ordering a new trial as to pan't.
    
    1. When the complaint contains several causes of action, and on the trial the plaintiff obtains a verdict as to all, and judgment is entered accordingly, the General Term on appeal may affirm as to those ccmses of action as to which no error was committed, and reverse and order a new trial as to those in respect to which error was committed, when a separation of the judgment may be made by mere calculation.
    1. Costs of appeal. ' In such case no costs of appeal should be awarded to either party.
    III. PEO OP AND EVIDENCE, DISTINCTION BETWEEN.
    Per Sedgwick, J.
    IV. APPLICATION OP ABOVE PBINOIPLES.
    1. Pennsylvania Pbotest.
    
      (d) In an action in this state against the endorsers of a promissory note, payable in Pennsylvania, the plaintiff, to prove presentment, refusal to pay, and notice to the endorsers, read in evidence (under objection) a notarial certificate made by a notary public of the city of Philadelphia, certifying that he had made due presentment of the note, and that payment was refused, whereupon he did protest, etc., “of all which I duly notified the endorsers.” He also read in evidence a statute.of the state of Pennsylvania, passed Pec. 14, 1854, printed in the laws of that state for 1855, at p. 724 ; that statute did not prescribe the mode of serving nptice, nor did it make a certificate of the form of the one in question, proof or evidence of the service of notice; there was no proof at the trial, either by the reading in evidence of the statutes, or the reports of cases decided, by the courts of that state, or otherwise, either that a certificate like the one in question was by the law of that state proof or evidence of the service of notice, or as to what mode was prescribed by the law of that state for the service of notice. The complaint contained five causes of action, three on promissory notes payable inPhiladelphia, as to which the aforesaid notarial certificate was read in evidence, and two on checks drawn on a bank in the city of New York, as to which said certificate had no effect. Plaintiff had a general verdict on all the causes of action for four thousand eight hundred and fifty-seven dollars and seventy cents ; but by computation it was easily ascertained how much of this was on the causes of action on the checks, and how much on the causes of action on the notes.
    Held,
    upon a review of the acts of this state (ch. 309, Laws of 1865; ch. 141, Laws 1835; and ch. 271, Laws, 1833) and of the Pennsylvania act read in evidence, that the certificate was not evidence or proof of service of notice; and therefore its reception was error.
    Held further,
    that by reason of this error the judgment so far as it proceeded, on the causes of action upon the notes should be reversed and a new trial ordered.
    But,
    as the error did not affect the recovery on the causes of action on the checks, the judgment, so far as it proceeded on them, should be affirmed.
    Held further,
    that neither party should have costs of appeal.
    Before Monell, Ch. J., and Sedgwick, J.
    
      Decided December 6, 1875.
    Appeal from judgment and order.
    The action was against the defendant as the endorser of three promissory notes, drawn and dated at Philadelphia and payable there, and as the maker of two checks drawn on a bank in the city of New York. The complaint contained five causes of action—three on the notes, and two on the checks.
    The defendant, by his answer averred that no notice ■of protest or presentment of the notes was ever given to him, and he. annexed to his answer an affidavit specially alleging the same.
    
      The plaintiff, on the trial, produced and read in, evidence, the certificate of a notary public of the city of Philadelphia, in which he certified that he had made due presentment of the notes, and that payment was refused. Whereupon he did protest, &c., “ of all which I duly notified the endorsers.''
    
    The plaintiff also offered and read in evidence tile-following section of the statute of the State of Pennsylvania :
    11 Section 2. That the official acts, protests and attestations of all notaries public, certified according to law-under their respective hands and seals of office, respect to the dishonor of all bills and promissory notes, and of notice to the drawers, acceptors, and endorsers thereof, may be received and read in evidence-as proof of the facts therein stated, in all suits now pending or hereafter to be brought. Provided, that any party may be permitted to contradict by other-evidence any such certificate.-’’
    The defendant objected to the certificate as insufficient proof of the service of notice of protest, and at the close of the plaintiff’s evidence, moved to dismiss the complaint on the grounds. First. That there was no evidence of due notice of protest. Second. That the-certificates were inadmissible to show the service of notice of protest, an affidavit denying notice having been, served with the answer. And Third. That the certificate did not show due or sufficient service of notice.
    The objection to the certificate was overruled, and the motion to dismiss denied. The defendant excepted.. At the time of the trial the principal and interest on the notes amounted to three thousand and fifty-one dollars and fifty cents, and on the checks to one thousand eight hundred and six dollars and twenty-two cents..
    The plaintiff had a verdict for four thousand eight hundred and fifty-seven dollars and seventy-two cents..
    The defendant appealed.
    
      
      Pinckney & Spink, attorneys, and of counsel for appellant, as to the points decided by the court, urged :
    I. The court erred in admitting the certificates. The affidavit annexed to the answer, as provided by statute, of non-receipt of notice, in all cases makes, common-law evidence of notice necessary (Seneca Co. Bank v. Neass, 3 N. Y. 445).
    II. The presumption arising from any notarial certificate ceases when the defendant serves, with his answer, an affidavit that he has received no notice of presentment or protest. The statute of 1833 may not affect the certificate of the notary, as to his common-law powers and duties, but in all other respects it is submitted that it is in operation (N. Y. Sess. Laws of 1833, ch. 271, § 8, 395; Seneca Co. Bank v. Neass, 3 N. Y. 442).
    III. The court erred in refusing the motion for non-suit. The only evidence of notice to the endorser was the notarial certificates.
    
      IV. If the notarial certificates were admissible for any purpose, they were incompetent as evidence of notice. It is no part of the common-law duty of a notary to serve notices of protest (Brooke, Office of Notary, 79 and 139; Bank of Rochester v. Gray, 2 Hill, 227 ; Ross v. Bedell, 5 Duer, 462).
    V. The laws of Pennsylvania nowhere define or enlarge the duties of notaries public ih respect to bills of exchange or promissory notes, but leave them as fixed and settled under the common law (Purdons Digest of Laws of Penn., title Notaries Public).
    VI. The Act of Dec. 14, 1854 (Penn. Laws of 1855, 724), does not enlarge the duties of notaries at all, nor does it alter the effect of the certificates of notaries of that commonwealth. It repeats the rule as it had long existed, and extends it to notaries of other states (Act of Assembly, January 2, 1815, 6 Sm. 238 ; Starr v. Sanford, 9 Wright. 45 Pa., 195).
    
      VII. If the law of this state (Session Laws of 1865, ch. 309, 516), taken with the Penn. Act of Dec. 14, 1854 (Penn. Laws, 1855, 724), shall be held to make a notarial certificate proof of service of notice ; still these certificates are incompetent for that purpose. The Pennsylvania Act makes them evidence of the facts therein stated. The facts in respect to presentment, demand, and protest are stated, but no fact in respect to notice is given.
    VIII. A fact is a circumstance, act, or event—and facts in the meaning of the law are physical facts, capable of being established by oral or documentary proof—not propositions which are true in law (Lawrence v. Wright, 2 Duer, 673 ; Drake v. Cockrort, 4 E. D. Smith, 34).
    IX. The notarial certificate should contain such facts as would be competent testimony, if orally given (Rogers v. Jackson, 19 Wend. 383 ; Taylor v. Stringer, 1 Hill, 377 ; Parsons on Notes and Bills, vol. 2, 495; Stewart w. Allison, 6 Sergeant da Rawle, 324, dissenting opinion of Gibson, J., 329).
    X. The danger and injustice of any other rule is well illustrated by Woods v. Neeld (44 Penn. 86).
    
      North, Ward & Wagstaff, attorneys, and Thomas M. North, of counsel for respondent, as to the points decided by the court, urged :
    I. As to the protest and notice of protest. The notes were foreign notes, and the protest was a foreign protest. The notes were dated and payable in Philadelphia, and protested there. This court in Ross v. Bedell (5 Duer, 462) intimated that proof sufficient to maintain an action in The courts of the state where the note is payable, would maintain it here. The statute of 1858 (Sess. Laws, 516) declared such to be the law of this state. The law of Pennsylvania, applicable to this case, appears by its statute, duly proved and printed in the case, and by the reported decisions of its courts below noted. It is the law of that state, that the protest of promissory-notes, and the giving notice thereof to. the endorsers, are official duties of a notary, and that his certificate, of the performance thereof, is prima facie evidence, not only that he performed them, but that the protest was made, and the notice given in all respects according to law (Statute Case, fol. 83; Stewart v. Allison, 6 Serg. & R. 324 ; Browne v. Phil. Bank, Id. 484 ; Fitler v. Morris, 6 Whart. 415; Jenks v. Doyleston Bk., 4 Watts & S., 505; Kase v. Getchell, 21 Pa. St. Rep. 503). It is also the law of Pennsylvania, that the notary’s certificate, under seal, proves itself (Browne v. Phila. Bank, ubi supra; Lloyd v. McGarr, 3 Barr, 474). Such is also the law of this state, and of most others as to foreign protests. Ghitty says (Bills, 361, 362), “ There is no necessity to prove the signature of the notary, or his seal; to it all courts give credit.” So held in Ross v. Bedell, ubi supra, and in cases there cited at p. 466. It is also the law of Pennsylvania, that it is sufficient if the notary certifies that he gave notice of protest to the endorsers, though he does not state how he gave it (see cases above cited ; also Lloyd v. McGarr, 3 Barr, 474; Woods v. Neals, 44 Penn. Rep. 86).
    II. The idea that the act of 1865 does not apply when an affidavit denying notice is filed by defendant, seems to have grown out of the act of 1833, ch. 271, § 8 (3 R. S., 5th Ed., 474), which provides that “this section shall not apply to any casein which the defendant shall annex to his plea an affidavit, &c.” The proviso only operates to preclude a certificate where the certificate derives its efficiency from that act. The act was expressly held not to apply .to foreign protests by this court, in Kirtland v. Wanzen (2 Duer, 278) ; and by the supreme court, in Bank of Rochester v. Gray (2 Hill, 227). It was held in McKnight v. Lewis (5 Bard. 681) not to limit the provision of the previous act (2 R. S., 283), and of course it can not limit a subsequent act.
    III. It was not necessary that the certificate should state how or in what manner he notified the endorsers, nor where, nor anything further than of all which I duly notified the endorsers.” The courts of Pennsylvania, if this action had been on trial there, must necessarily, under their decisions above cited," have-held these certificates to be “prima facie evidence that personal notice was given,” and would have presumed that defendant was in Philadelphia to receive it, or would have presumed service by mail, or in someway “ according to law.” Proof authorized and required by the laws of Pennsylvania to maintain the-action, having been made, unless it was rebutted, the notes by our statute, “ shall be held and deemed to have; been duly and sufficiently protested, and notice of all thereof duly given.”
   By the Court.—Monell, Ch. J.

The admissibility of the notarial certificate as evidence, depends upon the construction of the act of 1865 (Laws of 1865, ch. 309), concerning proof of the protest of notes, which are payable out of this state.

That act provides that presentment pf such notes, and notice of protest may be made, “ according to the laws of such other state, &c. And in any action in any of the courts of this state . . . such proof of such presentment . . . and notice thereof, may be made, as is authorized and required by such laws. And on such proof being made, the . . . note shall be deemed to have been duly and sufficiently presented and protested, and notice of all thereof duly given.”

The construction and application of this statute would be very plain, if there were no other statutes to be considered.

By an act passed in 1833 (Laws of 1833, ch. 271, ;§ 8), the certificate of a notary of this state is made -presumptive evidence of the service of notice of protest, but the act has no application where the defendant •annexes to his answer (plea) an affidavit, denying the fact of having received notice, as was done in this case. -Under the act referred to, the certificate of the notary must specify the mode of giving the notice, and the reputed place of residence of the party to whom it was given, and the post office nearest thereto. This was .slightly modified by the act of 1835, Laws of 1835 152, ch. 141.) As to the acts required to be done by .the notary, the certificate is made presumptive evidence.

In respect to the specification of the facts or acts of the notary, the statute of Pennsylvania differs from ours. Their statute provides that the official acts, protests, and attestations of notaries public, certified .according to law under their hands and seals, may be received and read in evidence as proof of the facts therein stated. There is nothing in that statute, which, like ours, prescribes the manner of serving notice; nor was any other statute, fixing the mode, proved on the trial; and it is understood there is no such statute.

That, however, does not affect the question of the application of the act of 1865, • which, apparently, makes any certificate under the hand and seal of a notary, evidence of the facts certified.

There is no repealing clause of the previous statute, but there is enough in the act of 1865, I think, to work a repeal by implication of so much of such previous statute as limits the certificate as presumptive evidence, to cases where the defendant fails to annex an affidavit to his answer. The policy of a rule of proving notice of the protest of foreign bills and notes, different from that which is required in respect to domestic paper, is a matter for the legislature, and not for the courts.

The act is certainly broad enough to admit as evidence a notarial certificate, notwithstanding the defendant has put himself on the record, so as to have made the certificate inadmissible if the note had been protested in this state.

Thecompetency of this kind of evidence was decided in the supreme court of this department, in Fassin v. Hubbard (61 Barb. 548), but it does not appear in that case, that the defendant had annexed an affidavit to his answer, and no question, therefore, was presented of the effect of the acts of 1833 and T835, upon the act of 1865.

But the latter act contains no exception. The certificate of a foreign notary is made evidence in all cases, and it is not, by anything contained in the act, limited to cases where the defendant has omitted to make the affidavit.

I am, therefore, of the opinion that the certificate was competent evidence, and the objection to its admission was properly overruled.

But the objection to its sufficiency remains.

The act of 1865 provides, that notes made payable in any state other than this state, may be presented for payment, and protested for refusal to pay, and notice of such presentment, and refusal may be made according to the laws of such other state. And in an action in the courts of this state upon such note, such proof of presentment, &c., may be made as is authorized and re quired by such laws.

The statute of Pennsylvania makes the official certificate of a notary public evidence, and meets or covers that part of the act of 1865, in respect to the proof authorized and required by such laws,” but does not provide, nor was any other statute or law given in evidence, which provides or shows that the presentment, refusal to pay, and notice thereof was made “ according to the laws ” of that state.

The certificate is made evidence ‘ ‘ of the facts therein stated,” and of nothing more. And as it does not show that the presentment and notice was made and given in accordance with the laws of the state of Pennsylvania, it can not be made available, as evidence of giving notice to the endorser.

To make the certificate evidence at all, under our act it is incumbent on the plaintiff to show that the presentment and notice of protest was made in accordance with the law of the State where the presentment is made and notice given.

In that respect there was a failure of proof. The certificate was deficient in not stating the facts, showing that the protest and notice was made in the manner provided by law, and the plaintiff offered no other evidence that it was so done.

In the case of Fassin v. Hubbard (supra), it was proved that notaries public in Louisiana were required, by statute, to keep a record of the protests made by,them, together with mention of the notices given by them, and the manner in which they were served.

It can not be successñilly contended, I think, that after reciting the presentment of the notes, and the refusal to pay, it is enough for the notary to certify, “of all which I duly notified the endorsers unless it is shown that by the law of Pennsylvania, the certificate is not required to state anything more or further. If there is any manner of giving such notices prescribed by statute in Pennsylvania, as there is in this State, then such mode must be followed, and it must be specially stated in the certificate. To certify that it was duly done is not sufficient.

Independently of any statute, the law provides the various modes of giving notice according to the exigencies of every case. Thus it may be either personal, or at the domicil or place of business of the party; or ■by the post, or by a special messenger, &c. But if by the post, it seems indispensable that • it should be in writing, and be sent to the appropriate post-office.

In meeting the denial of notice by the endorser, enough must be shown to answer the law. It must ¡appear that notice was given in one or other of the prescribed modes ; and if by the post, that it was addressed to the proper post-office. It is no part of the duty of a notary public to notify the parties entitled to notice, of the non-payment of a bill or note unless required to do so by statute (Bank of Rochester v. Gray, 2 Hill, 227). And when his certificate, for ■convenience or economy, or otherwise, is allowed to be substituted in some cases for oral proof of the protest and notice, it must contain as much, at least, as would be required in his oral testimony. It was not •intended, I think, that it might contain less facts than would be required in the oral proof; and the statement •of the notary on the stand, that he had “ duly notified Ihe endorsers,” would not be regarded as sufficiently •describing the manner of notifying. He would be asked, and required to answer, how, and in what form ¡and particular manner he had given or served the notice.

The presumption which arises in favor of the per-' formalice of official duty is confined to the act itself. "Thus where an officer is required to do a certain thing, -'it will be presumed that he has done it, and his certifying he has done it, will be taken as true. But when the officer certifies to the doing of the act, he must certify to having done all that the law requires him to •do; and there is no presumption that will supply .any omission in that particular.

Where proof by certificate is substituted for common-law evidence, all the forms directed by the statute, whether preliminary or substantial, must be strictly -complied with (Rogers v. Jackson, 19 Wend. 383). And the rule applies as well to duties required by or performed under the common law. In the case cited, the certificate omitted to specify the post-office nearest to the reputed place of residence of the party notified, and the certificate was held to be insufficient.

The language of the act of 1865, is to me very plain. It does not absolutely render a foreign notarial certificate sufficient, unless the notary certifies to enough. If there is a statute prescribing the manner of notifying endorsers, the certificate must state the mode of service. If there is no statute, then the common-law mode must be followed, and the certificate must state the facts.

The act allows presentment and notice to be made and given, according to the laws of such other state, and proof thereof to be made as is authorized and required by such laws. On such proof, i. e., that the presentment and notice was according to the laws of such state, being made, it shall be held to have been duly done, and such a certificate would be enough.

So far the lex loci will control. If the protest and notice is in accordance with the laws of the state where the note is payable, it will conclude the courts here. But the proof and its sufficiency is governed by the lex fori, unless it is shown that the proof is of all the facts required by tjhe laws of such foreign state, or by the common law. And the burden of showing that rests upon the holder of the dishonored paper.

If these views are correct, then the notarial certificate should have been excluded from the jury, as not containing or being any evidence whatever of the service of notice upon the defendant; and the learned justice erred in refusing so tó charge.

Therefore, the submission of the question of notice to the jury as a fact to be found upon somewhat conflicting evidence, does not cure or remove the objection to their finding it upon improper evidence.

As no objection to a recovery upon the checks was raised before ns on the appeal, and as it was in substance conceded by the appellant’s counsel that the only error was in the admission of the notarial certificates, which relate solely to the notes in suit, there is no reason for disturbing so much of the judgment as is covered by the checks.

The judgment will be modified by deducting therefrom the sum of three thousand and fifty-one dollars and fifty cents, being the amount of the notes and interest, and as modified, affirmed, without costs of the appeal.

And as to the notes mentioned and described in the complaint, the judgment must be reversed, and a new-trial granted, upon the pleadings applicable thereto, without costs of the appeal to either party.

Sedgwick, J. (concurring).

Our statute of 1865 called for proof upon the trial of what was notice of presentment and non-payment, according to the laws of Pennsylvania, and what proof of such notice was authorized and required by such laws. This was a matter of fact to be governed by the common-law rales of evidence, and our statutes. The evidence must be given upon the trial (§ 486 of 1 Or. Bn. and note of editor referring to a new section, § 688a, added by him to his edition of Story’s Cortf. of Laws). | 426 of the Code of Procedure enacts that printed copies of statutes of any state, &c., purporting to be published by authority, shall be admitted on all occasions as presumptive evidence of the laws of such state, and the unwritten or common law of any other states &c., may be proved as facts by parol evidence, and the book of reports of cases adjudged in these courts, may also be admitted as presumptive evidence of such laws.

In Cutter n. Wright (22 N. Y. 472), one of the judges considered that on the question of usury raised at the trial in regard to a contract governed by the laws of Florida, the Code cited above made it legal to examine the statutes of Florida for the first time in the court of appeals. But in Hunt v. Johnson (44 N. Y. 27), one of the judges said, and it seems to me more fairly, that the statute must be proved on the trial, or otherwise not considered on appeal. It was but evidence of a fact, and only presumptive evidence, as to which the opposing party had a right to give further evidence. Such a proceeding could take place only on the trial, and was itself subject to review upon appeal.

In the present case the Pennsylvania statute, on which the plaintiff relies, was duly proven at the trial, and under this the notary’s certificate was admitted.

There was no proof, however, of what notice of presentation and non-payment of a promissory note, the laws of Pennsylvania required to make an endorser liable. On this point, for the reasons stated in respect of statutes, the books of reports of cases adjudged in the court of Pennsylvania, were not evidence when cited in the case for the first time on this appeal, nor were they evidence to show that the language of the certificate, “ of all which I duly notified the endorsers,” were by the laws of that state, prima, facie evidence of the existence of the fact of sufficient notice. By the common law, to which we are left in construing the certificate, the phrase quoted does not state facts, but a declaration that some unstated facts were sufficient in the notary’s opinion to constitute the notice to be by law given to the endorser to make him liable.” It is therefore not proper to examine if the present certificate' has the effect claimed by plaintiff, under the reported cases cited from the Pennsylvania Reports.

We are not, then, called upon to give a more particular construction of the statute of 1865, of this state. There is a question as to the meaning of fhe provision, “ proof, &c., of such notice thereof, may be made as is authorized and required by such law.”

“ The word evidence, in legal acceptation, includes all the means by which any alleged matter of fact, the truth of which is submitted to investigation, is established or disproved. This term, and the word proof,\ are often used indifferently, as synonymous with each other, but the latter is applied by the most accurate logicians to the effect of evidence, and not to the medium by which truth is established (1 Gr. Ev. § 1). If the word “proof,” in the statute designates the means of establishing the facts, the effect of the evidence would be left entirely to our courts, to be applied to the law of Pennsylvania, as to what notice was necessary to be given to an endorser. This construction would agree with the general, useful, and easily-applied rule, that the weight and sufficiency of testimony is controlled by the lex fori."

On the other hand, if the word implies the means of proof, and its sufficiency to establish the existence of the fact under investigation, the broader rule would be recognized as the object of the statute, that the obligations of parties to a contract made and to be performed in another state, are governed by the laws of such state. And if it appeared, in a case like the present, that the obligations of the defendant were such as were created by the laws of Pennsylvania and that there an endorser would be liable, prima facie, so far as notice was concerned by the production of a notary’s certificate like the one here, the statute of our state would provide for such a case. I am inclined to the latter construction, because the statute ends with the words, “And on such proof being made, the said bill of exchange or promissory note or bank check, shall be held to be, and deemed to have been duly presented, &c., and notice of all thereof duly given.” This can not mean that if the same kind of evidence is used here that is authorized in another state, notice shall be deemed to be given, irrespective of the contents of the evidence.

But for the reasons stated in the learned Chief Justice’s opinion, as well as here, I concur in the conclusion arrived at by him.

Monell, Ch. J., concurred in this opinion.  