Jenks against The Doylestown Bank, 4 Watts & Serg. 505

The opinion of the Court was delivered by Sergeant, J. — The Act of 2d of January 1815, authorizes the protest of a notary to be read and received in evidence of facts therein certified, provided that any party may be admitted to con-i tradict by other evidence such attestation. In Stewart v. Allison (6 Serg. & Rawle 324) and Browne v.

The Philadelphia Bank (6 Serg. & Rawle 484), the effect of this enactment came under the consideration of this Court, and the principle was there settled that the notary’s protest of a promissory note was prima facie evidence of the facts contained in it, and that they stood as proved until they were repelled by contradictory evidence. The former of these'was a very strong case. The plaintiff gave in evidence the protest.

The notary was called by the defendant, and swore that the protest was in the handwriting of his son, who was then on a voyage to the West Indies; that he did not give notice himself ; his son attended to the business. for him: that he had no knowledge of the notice having been given to the endorser of nonpayment by the maker, except what his son told him, who said he had given the notice and had written it in the protest, and that this had been the practice of doing business among the notaries. Tilghman, C.

J., said it was very possible the jury might give more credit to' the official certificate, than to the oath of the notary. He may be tampered with after giving his certificate,, or the jury might think the certificate and parol evidence were not inconsistent ; and he held it was for the jury.

To which I may add, that it is hardly to be expected that a notary can, after a lapse of years, specify every minute item of his daily routine of business; and also that as the duty is performed by a sworn officer, under his oath, and with the solemnities of his office, the legislature of Pennsylvania have thought fit to give his attestation a peculiar sanction. The law as settled in these cases, has, it is believed, been uniformly acted on among us • since, and the protest of the notary considered as. establishing the fact of notice when recited in it, unless it be disproved by other evidence.

Then, in the case before us, the notary certifies in his protest of the 4th of December 1837, that he had notified the endorser by mail of the non-payment of the note: and whether this fact, thus, established, primh facie, was refuted, either by the notary’s own testimony or that of others, was for the jury, and was properly left to them by the court.. The evidence of the notary seems to amount to little more than that he could not recollect the eireumstances; but he repeatedly declares that he had no doubt that he had given notice as stated in his protest.

The parol evidence, which is not a little obscure in itself, and very confusedly spread upon our paper-book, seems to make out no more than grounds from which the defendant might argue to the jury, that notice had not been sent by the mail: for it was clearly sufficient in law, if duly sent, though Dr Jenks might not have actually received it. The credibility, however, of the witnesses, and the probability of the facts alleged on one side and denied on the other, were for the jury, and they have decided them.

As to the objection to the seal: although the seal is not such as the Act of Assembly directs notaries ter make use of, yet it appears it was the seal used by Mr Snyder as his notarial seal, and was affixed as such at the time. It would, we think, be going too far, to say, that if the notary does not use a seal, in all respects corresponding with the requisites pointed out in the Act of 1791, (although such was certainly his duty), his official proceedings would be null and void. This enactment ought to be construed as directory only.

There seems nothing in the evidence to support the idea that notice was sent on Wednesday, and' therefore the charge of the court in that respect was on an abstract point. And as to the variance, we have not been furnished with the declaration on the paper-book: but the case seems to fall within the principle decided in Rahm v. Philadelphia Bank (1 Rawle 335), that when a note is payable at bank, and the endorsee is there ready to receive payment, no further demand is necessary to charge the endorser. Judgment affirmed.