President of the Dutchess County Bank v. Ibbotson

5 Denio 110

• Court: New York Supreme Court
• Decided: October 15, 1847
• Status: Published

Opinion

By the Court, Beardsley, C. J.

This is not a case to which the provision malting notarial certificates presumptive evidence of certain facts, has any application; so that if the certificate had been produced and had been in due form it would not have been evidence. (2 R. S. 2d ed. 283, § 46.) The section authorizes the notary to certify certain official acts—the demand of payment and notice. But the note must have been demanded in New-Jersey; and this demand could not have been an official act of a notary in this state.

But the certificate of the notary was not produced, and although it was lost or destroyed, parol evidence of its contents was inadmissible. The statute makes the certificate presumptive evidence, which was itself an innovation upon the common law rule of evidence. As the certificate was not produced, the statute was not complied with, and the common law rule applied to the case. This was especially proper as the notary was living in the state and might have been produced. In such a case secondary evidence of the certificate should never be received.

There was no legal evidence of the genuineness of the certificate, or of its contents. But this is not material, the other reasons stated being sufficient to require a new trial.

New trial granted.