Jonathan Shove versus Caleb Wiley, 18 Pick. 558

Shaw C. J. delivered the opinion of the Court. In assumpsit against the defendant as the indorser of a promissor)1 note, two issues were tried, the one the general issue, the other upon the statute of limitations. To support the latter, a new promise within six years, was relied upon.

The proof being clear, that the defendant admitted that he indorsed the note, and promised to pay it, if the holder could prove that he the defendant was legally notified of the non-payment by the promisor, a fact which the plaintiff must prove, in order to charge the defendant at all as indorser, the same proof which will warrant a judgment against the defendant, on the general issue, will take the case out of the statute of limitations. The question then upon' both grounds is, whether the evidence detailed in the report is competent and sufficient to prove a demand on the promisor and notice to the indorser.

In the first place, we are of opinion, though the testimony is not very full upon that subject, that where the parties to a note were inhabitants of Lynn, as the promisor and indorser both were, the Lynn Mechanics Bank were accustomed to give notice to the promisor to pay at the bank, instead of sending the note to him ; and that the promisor and indorser on this note were so far conversant of the custom of the bank, by transacting business there, that their assent to it maybe presumed.

The case then depends upon the common question, whether the plaintiff, who has the burden of proof, has offered that evidence, which is competent and sufficient to prove a demand on the promisor, and notice of non-payment to the indorser. The witness, who was an officer of the bank, testifies to an entry made by himself, in a book kept at the bank for that purpose, certifying that on the day the note fell due he notified William B. Breed, the drawer, and Caleb Wiley the indorser, of a note corresponding in description with the note in controversy j and the identity of which is not contested.

He states that he was at that time clerk in the bank, that it was his practice to carry notices personally to the residence or place of business of all persons in town, and he has no doubt that the notices were so given in the present instance. He further says, that he was careful to give the notices and to make a record of the same.

Ia the cross-examination he states, that he has no particular recollection of the transaction, independently of the entry which he finds in the book, but from his habit of transacting business, his mode of keeping the book, and making entries therein, and the purpose of making them, he has no doubt, that the notices were left. It is very obvious to remark, that if such evidence is'not sufficient, it would be extremely difficult to prove such acts done.

Where bank messengers, notaries and such official persons, do hundreds and thousands of such acts every year, ijt would be contrary to all human experience, to believe that they could recall the recollection of each, by force of present memory, even after looking at a written memorandum ; but the witness may testify to other facts, which, with the aid of the memorandum, will afford a very satisfactory inference that the act was done ; such as his usual practice and habit, his caution never to make such memoranda unless the acts were done, and his consciousness of the importance and necessity of accuracy, in this particular.

In this respect, it is like the testimony of an attesting witness to an instrument. He recognizes his handwriting, he knows he put his hand there, he testifies that he believes he would not have put it there if he had not seen the instrument executed, but he has no present recollection of the fact, other than that derived from the recognition of his handwriting. Such evidence, we think, it is every day’s practice to admit, and if not controlled by other evidence, a jury might and ought to infer from it, the fact of execution.

In the first place, we think the book produced in the present case, containing the entry made by the witness, which enables him to testify, is not to be treated as a mere private memorandum, "used to excite and to stimulate his memory, and enable him, after seeing it, to recall the actual present recollection of the fact to be proved.

We understand it, from the manner in which the witness describes it, as a regular book.kept by the bank, for the purpose of' inserting therein, certificates or stafements of the acts of the officers, done by them in tne regular discharge of their official functions, and intended to preserve the evidence of such facts. The witness speaks of the book, as one of the “ records ” of the bank, and his entry therein, of the certificate of the act done, as making a “ record ” of the same. And in the case of the note in question, the certificate is further authenticated by the signature of the witness.

It is very clear that this is such a book, as would of itself, be evidence of the fact, if the witness were dead ; Welsh v Barrett, 15 Mass. R. 380; or had absconded, having committed an offence which, if he were convicted of it, would disqualify him. North Bank v. Abbot, 13 Pick. 465. It is not a mere memorandum, which can be used only to stimulate the faculty of memory in the witness, and then must be laid aside ; it is to some extent, and for some purposes, evidence, and it is so treated in the cases cited.

Such books are in the nature of registers, and other memoranda of notaries public, which are given in evidence in connexion with testimony as to their usages and practice, whilst living, (Miller v. Hackley, 5 Johns. R. 375,) and may be offered in evidence after their decease, authenticated by the testimony of clerks or others, who can identify them and testify to their mode of transacting business and keeping registers of their acts. Halliday v. Martinet, 20 Johns. R. 168; Nichols v.

Webb, 8 Wheat. 337, Indeed, in regard to promissory notes and inland bills of exchange, in which the protest of a notary public is not of itself necessary or even competent evidence, as by the custom of merchants it is in regard to foreign bills, the protests of notaries public stand on precisely the same footing. They are formal certificates of the acts of the notaries, authenticated by their signatures and seals, but which are not legal evidence. But if the notary, with the aid of this formal evidence of

an act done by himself, can testify that he believes the act was, done, though he has no present recollection of it, it is competent evidence. Union Bank v. Hyde, 6 Wheat. 572. Were it otherwise, inasmuch as a formal protest would be no evidence, if the notary were living, the evidence could only be perpetuated by a deposition in p<o petuam, and even that is not usually allowable as evidence in communities and courts governed by the common law, but depends on a statute regulation of our own State.

We think the cases where a witness has been prohibited from testifying by the aid of a memorandum, unless after looking at the memorandum he can testify from present recollection, are those where the memorandum used is not one taken by himself, or is a copy or extract of one not produced. In all such cases he is required to. produce the original memorandum. Doe v. Perkins, 3 T. R. 749. The reason of this is obvious.

Where the witness can testify to the facts, only by the aid of the memorandum which he finds, he shall produce the memorandum, because it is, under the circumstances, the best evidence which the case will afford, and better than copies or extracts, which, in reference to such originals, are secondary, and pre-suppose a better in existence, and because the production of the paper will enable the adverse party, on cross-examination, to examine the book or paper itself, so that if the matter testified by the witness, is controlled or qualified by any thing else contained in the memorandum, the adverse party may have the benefit of it.

In a case in South Carolina, the court has gone somewhat further than we find it necessary to go in the present, and have decided, that where a witness made any memorandum at the time, for the purpose of enabling him to testify to it afterwards, and can afterwards say that he made it at the time, for that purpose, and intended to make it conformably to the truth, and now believes that he did, it is competent evidence to go to a jury, though the witness admits that he cannot now testify to the facts, from present recollection, even after refreshing his memory by the use of the paper.

Perhaps, in regard to sums and dates, and other minute particulars, where the witness recollects the general course of the transaction, such use is commonly made of a written memorandum in practice, though, perhaps, the witness does not usually declare so explicitly his want of present recollection as the witness did in that case. State v. Rawls, 2 Nott & M‘Cord, 331. Perhaps, in many cases, as that of a tender of a precise amount in dollars and cents, the delivery of a cargo, kept in a memorandum book, and other similar cases, it would be impossible to prove the facts, without making such use of the memorandum.

So of the words spoken in case of slander. But it is not necessary to decide this general question in the case before us. The present is the case of a regular book kept at a bank, and the entries are the official acts of its clerks, done within the ordinary scope of their authority. In the case of the Union Bank v. Knapp, 3 Pick. 96, a book of the same description, on proof that the clerk who kept it had become insane, and on proof of his handwriting, was admitted as competent evidence.

The book offered in the present case would become admissible, according to the cases cited, on proof oi the handwriting of the clerk, in case of his death, insanity o¡ other incapacity to testify; and we think it is not the less so when authenticated by himself. As to the form of the notice given, the clerk exhibits a printed form in common use, and testifies to his belief that the notices in question were in the same form ; which is competent, and in the opinion of the Court, sufficient evidence of the fact. Judgment for the plaintiff on the default.