Allen & Co. v. Georgia National Bank

60 Ga. 347

Opinion

Bleckley, Judge.

The notary made a certificate as to the service of notice on the indorsers, and afterwards, on being called to testify in relation thereto, could not recall the facts, but stated that he was satisfied of the truth of the certificate, because he would not have certified as he did, had he not been convinced that the matter of the certificate was true. In connection with this evidence, the certificate was admissible. 5 Martin (La.) N. S. 196 ; 2 Nott & McCord, 331; 1 Gr’l’f’s Ev. §437; 2 Phil. Ev. by Cowen & Hill, 750, note 528; 6 Ga., 365; Code, §3866.

2. But neither the certificate nor the testimony supplementing the same, disclosed how the notices were addressed; that is, to what post-office the enveloj)es or packages were directed ; nor did it appear that they were in a condition, with respect to stamps or prepayment of postage, to pass to the indorsers in the regular course of the postal service. There being positive affirmative evidence that the notices were not received, the want of evidence that the address was proper and that the postage was paid, was not to be supplied by mere implication. It was incumbent upon the plaintiff to prove these facts to the reasonable satisfaction of the jury. As to direction, see 20 Johns, 168 ; 1 Parsons on N. & B., 496, 478, note v.

3. The evidence was, that the notary served the indorsers with notice by depositing said notices in the post-office in the city of Atlanta. It did not appear that the indorsers resided in or near Atlanta, or that they usually got their letters there. Neither did it appear that the postage was paid, or that there was any address or direction on the package or packages. The evidence fell short; and the plaintiff should not have recovered against the indorsers, they testifying that the notices were not received. -

Cited for the indorsers : Code, §3829; Cobb’s Dig., 273; 3 Ga., 492, 493, 486; Code, §1502; 2 Daniel Nego. Inst., 17, 18, 74, 53; 5 Ind., 610; Busbee, 371; 3 Ala., 321; 3 Hill, 520; 10 Allen, 522.

Cited for the creditor: Prince Dig., 216; 1 Gr’leaf’s Ev. §§115,116; 8 Wheaton, 326; 6 Seiden, 96; 16 Wend., 586; 2 Hill, 531; 9 Barb., 395 ; 5 Martin, La. N. S., 196; 2 Man. & Ryl., 5, 7; 6 Ga., 365 ; 13 Ib., 510; Story on Bills, 454; 1 Hill, Law, R. (S. C.) 30; 3 Ga., 486; Smith’s Mer. Law, 273, 290, note; 4 Howard, 336; Story on Bills, 422; 18 230, Johns, 392; 10 Howard, 515 ; 273; Story on Bills, 229; 1 Kelly, 284, 314; Chit, on Bills, 131, 133; Parsons on Cont., 205, 206; 1 Gr’l’f’s Ev., p. 46; 19 Johns, 345; 56 Ga., 294; 20 Ib., 50.

Judgment reversed.