O'Connell v. Walker

1 Port. 263

• Court: Supreme Court of Alabama
• Decided: June 15, 1834
• Status: Published

Opinion

By Mr. Chief Justice Lipscomb ;

On the trial of this cause, in the court below, the plaintiff produced and read in evidence the protest of Thomas Mather, a notary public, a copy of which is in the following words, viz;

“UNITED STATES OF AMERICA:

“ The State of Alabama, > . ' C (ss") City and County of Mobile, i

“ Be it known, that I, Thomas Mather, notary public, dwelling in the aforesaid city of Mobile, duly commissioned and sworn, on the eighteenth day of August, in the year of our Lord one thousand eight hundred and thirty, at the request of the President and Company of the Bank of the United States, did present the original note, a true copy whereof is on the other side written, at the counter of the Bank of Mobile, and demanded payment thereof, to which it was replied, £ it will not be paid for want of funds of the drawer Whereupon, I the said notary, at the request aforesaid, did protest, and by these presents, do publicly and solemnly protest, as well against the drawer and indorsers of said note, as dgainst all others whom it doth or may concern, for exchange, re-exchange, and costs, damages, and interest, incurred, or hereafter to be incurred, for want of payment of the said note. Went to the counting house of Wm. C. Hallet, agen4 of J. E. O'Connell, on the day of the protest, but found no person there to receive notice of the protest. Thus done and protested in the city of Mobile aforesaid; in testimony whereof, Í have hereunto set my hand, and affixed my notarial seal, on the day and year aforesaid.

Signed, THOMAS MATHER,

Notary Public.”

It was admitted that the notice was given in time. The defendant’s counsel prayed the court to charge the jury, that the protest was no evidence of the agency of Hallet, which charge was refused.

There is no doubt, that but for one statute, thti certificate of the notary was inadmissible. This statute provides “that the protest of á notary public, which shall set forth a demand, refusal, non-acceptance, or non-payment of any inland bill of exchange, or other protestable security for money or other things, and that legal notice, expressing in the said protest, the, time when given of such fact or facts, , was personally or through the post office, given to any of the parties entitled by law to notice, shall be evidence of the facts it purports to contain ; and entitle the holder of such security to the damages to which by law he may be entitled.”

a

We believe that a proper construction of the statute, will confine the notarial certificate, when used as evidence, to the facts enumerated; and as the fact of the agency of Mr. Hal- ' let, cannot by any fail? interpretation of the law, be considered as embraced, it should have been proved aliunde. If this agency had been proved, the certificate of the notary would have been evidence that he had received notice.

For this cause, we believe, the judgment must be reversed, and the cause remanded.

Ai!c'