Turner v. Rogers

8 Ind. 139

• Court: Indiana Supreme Court
• Decided: November 27, 1856
• Status: Published

Opinion

G-ookins, J.

Rogers and Sherlock brought this action against Turner, as indorser of three promissory notes, executed and payable in Ohio, and protested at maturity for non-payment. A statute of Ohio is set out in the complaint, making promissory notes negotiable, and giving the indorsee a right of action against the indorser, upon demand of payment at maturity, and notice of dishonor.

The defendant answered by a general traverse.

Trial by the Court. Finding for the plaintiffs for the amount of the notes. New trial refused, and judgment.

The plaintiffs’ evidence consisted of the notes with their'indorsements; a protest of each for non-payment at maturity; and the law of Ohio set out in the complaint. This was all the evidence.

The only question is whether the protests are sufficient evidence of diligence to charge the indorser. They state the presentment and non-payment, and proceed: “Whereupon I then protested the same for non-payment, and notified Henry Turner and John IT. Woodfill, (a subsequent indorser,) by letter to each, at New Albany, Indiana, per mail, without delay, the same day.”

We are to look to the law of Ohio for the facts which will charge an indorser, and to the law of Indiana for the evidence to prove them.

The statute of Ohio provides that a demand of payment from the maker, on the third day of grace, and notice of non-payment to the indorser, within a reasonable time thereafter, shall be adjudged due diligence.

A statute of this State is as follows: “ Certificates or instruments, either printed or written, purporting to be the official act of a notary public of -this State, or of any other State or territory of the United States, and purporting to be under the seal and signature of such notary public, shall be received as presumptive evidence of the official character of such instrument, and of the facts therein set forth.” 2 R. S. p. 91, s. 281. Another statute, — that which authorizes the appointment of notaries public and prescribes their duties, — gives the notary power to do all acts which by common law and the custom of merchants he is authorized to do; to certify acknowledgments of deeds; to administer oaths; take depositions, &c.; and provides that “the official certificate of a notary public, attested by his seal, shall be presumptive evidence of the facts therein stated, in cases where he is authorized by law to certify such facts.” 1. R. S. pp. 377, 378, ss. 5, 6. The act regulating fees of officers, gives to a notary public, for each protest 50 cents, and for each notice thereof, 25 cents. 1 R. S. 290.

In Fisher v. The State Bank, 7 Blackf. 610, a construction was put upon two statutes, one of 1838, (R. S. p. 274,) which was the same as that of 1852 just quoted,

(1) and one of 1842, (Acts p. 79,) fixing the notary’s fees for protest and notice thereof. It was held that under these statutes a notary was authorized to demand payment of a note and to give notice of its dishonor; and that the acts being authorized, the protest stating them to have been done was admissible to prove their performance.

The Ohio statute put promissory notes on the footing of inland bills. In Dumont v. Pope, 7 Blackf. 367, it was doubted whether the protest of an inland bill was evidence for any purpose; (2) .and independent of the case of Shanklin v. Cooper, 8 Blackf. 41, we think it would be very difficult to find authority giving' to the protest of an inland bill or note made out of this State, any force whatever here. (3) Nevertheless, we are inclined to follow that case, and to hold that so far as presentment, demand of payment, and the transmitting of notice are concerned, the protest is evidence. The universal practice of doing so, which the commercial community has adopted, and which is well known to the profession, indicates the propriety of this course; and as a contrary rule would require us to overrule a decision of this Court, we are disposed, instead of doing so, to follow it.

. But we think the plaintiff did not entitle himself to a verdict by the evidence offered. He gave no evidence that the defendant resided at New Albany, or any where else. The notary’s statement in the protest that he notified the indorsers, is qualified by specifying the manner in which it was done — that is, by addressing the notices to them at New Albany. The bill was drawn, indorsed, and payable, in Ohio. There is no presmnption that they resided at New Albany. That the defendant was served with process five years afterwards, in Flóyd county, is the evidence, if any, to show that the notice was properly directed. ’Without an entire departure from the rule that the plaintiff must prove his case, we cannot hold this sufficient.

Per Curiam.

The judgment is reversed with costs. Cause remanded, &c.

W. T. Otto and J. S. Davis, for the appellant. (4) B. Crawford, for the appellees. (5)

The statutes of 1838, R. S. p. 274; of 1843, R. S. p. 727; and of 1852, R. S. vol. 2. p. 91, are precisely alike.

Dumont v. Pope, was an action of debt, brought upon an order in writing, bearing date the 17th day of September, 1842. A notarial protest was in evidence, setting forth that the reason given by the drawees for non-acceptance was that they had no effects of the drawer in their hands. Judge Blackford remarks, “The plaintiffs say no presentment is necessary, the drawees having no effects of the drawer; but the want of effects was not proven. The statement on the,subject in the protest is no evidence of it. Indeed, it is doubtful whether the protest of an inland bill is evidence here for any purpose.”

One of the errors assigned in Shanklin v. Cooper, was that “ an instrument of writing purporting to be a protest and certificate of a notary public of New York, with the note described in the declaration annexed thereto,” was improperly admitted in evidence. After setting forth the instrument, Judge Blackford said: “We think this evidence was correctly admitted. It was incumbent on the plaintiff to show the diligence he had used for the purpose of rendering the defendant liable; and to show that, he introduced the instrument in question. He did not prove the execution of the instrument, nor was it necessary for him to do so. There is a statute making such instruments admissible evidence of their official character, and of the truth of the facts set forth in them. R. S. 1838, p. 274. The instrument was rightly received therefore, to prove the steps which' had been taken to fix the indorser. Whether those steps were sufficient for the purpose is a different question.”