AUSTIN SUMNER and JOHN R. KIMBALL, Plaintiffs in Error. vs. IRA W. BOWEN, Defendant in Error, 2 Wis. 524

By the Court, Crawford, J. On the trial of this cause in the Circuit Court, the plaintiffs gave in evidence the promissory note sued upon, with the dorsement of the defendant Bowen, to whom the note was made payable. They __then gave in evidence a protest of said promissory note, made and attested under his special seal, hy John B. F. Russell, a notary public, residing in the city of Chicago. This being all the evidence offered in the case, the circuit judge charged the jury that the protest offered in evidence was not evidence of notice to the defendant Bowen, sufficient to render him liable as endorser.

To this charge, the plaintiff excepted, and a judgment having been rendered in favor of the defendant Bowen, the plaintiffs have sued out this writ of error. We see no error in the charge of the court. In the case of Brewster vs. Arnold, 1 Wis.

R. 264, there was proof of notices of protest, made by the deposition of the notary public, and these notices informed the endorser that these notes had been “protested for non-payment.” The only question before us in that case was, . whether the notices given were sufficient; and we held that the- words “protested for non-payment,” were equivalent to the statement of presentment and refusal to pay.

In the present case, the,question is, whether in the case of ,a promissory note, protested in the State of Illinois, the protest itself, duly authenticated under the hand and official seal of the notary, and containing a statement that on the day of the protest, “ due noticed’ thereof were put in the post .office at Chicago, directed to the maker and endorser,' is evidence of notice of dishonor to the latter ? ■ The lability °f an endorser is only conditional, and depends on his being notified of the dishonor of the bill or note, and therefore the fact that notice has been given to him, and the sufficiency of such notice, are important enquiries, when it is sought to render him liable.

We are not informed in this case whether, by the laws of the State of 'Illinois, a notary public is authorized to protest promissory notes for non-payment ; although, as a matter of fact, it is well known that throughout the country the practice of protesting notes is very common. Still it is by no means essential to render the endorser liable; because the material thing to be done, to affect him, is to inform or notify him that the note has become due, has been presented for payment, and that such payment has been refused.

By the general law merchant, in the case of foreign bills of exchange, a protest is necessary, in order to establish the liability of an endorser, and hence it is received as evidence of presentment and dishonor ; yet this effect is not given to it in the case of promissory notes, because in such case a protest is unnecessary ; but even in the case of a note, when the formalities of protesting have been resorted to, and a notice thereof is given, containing all the requisites which the law prescribes, we hold that the language which may be used in one case to signify dishonor, will be equally efficacious in the other.

It is necessary, however, to prove what the notice given was, so that the court, and in some cases the jury, may be enabled to judge of its sufficiency. Now, in the present case, the only evidence of notice is the statement in the protest, that due notices thereof were put in the post office.

We are disposed to give the same force to the action of a notary, in protesting notes, as in protesting bills, whenever we can find that his acts are official, and authorized by the law of the place, and when they are established, but we think it would be extending the presumption of law too much, to hold that the statement of a notary, that he gave due notice, necessarily implied that the notice was in all respects legal and sufficient.

It is enough that our law concedes to the certificate of a notary the character of prima fade evidence of the facts therein contained, without requiring us to go further, and presume the existence or truth of facts therein contained, without requiring us to go further, and presume the existence or truth of facts not contained in the certificate. The substance of the notice ought to be proved aliunde.

It is said to be indispensable that a notice should either expressly, or by just implication, contain a description of the note, an assertion of its presentment and dishonor, and a claim by the person giving notice^ or for whom it is given by a notary, or his agent, against the endorser so notified, for reimbursement* Story on Prom. Notes, sec. 348. But how are we to know that all these ingredients were embodied in the notice given in this case. Our statute (Rev.

Stat., chap. 9, sec. 60) provides, that the certificate of the notary shall be presumptive evidence of the presentment of a bill or note for payment, of the protest of such bill or note for non-acceptance or non-payment, uand of the service of notice thereofbut it does not in any manner affect or change the general law as to the substance and requirements of such notice.

There may have been notice of protest given in some form, but it does not follow that such notice was sufficient to render the endorser liable; and until it is shown either by the testimony of the notary, or in some other way, what this notice contained, it is for the court or jury to say whether the endorser is liable or not.

We think, that under our statute above referred to, the general commercial law as to the effect of a pro: test or certificate of a notary, in case of a promissory note, when offered in evidence, is changed, and that such protest or certificate, when it recites the facts required to be certified, is evidence of such facts, and would be evidence of nothing more. We hold that the protest or certificate in this case, was not evidence of such notice as would render the endorser liable. The judgment of the Circuit Court must be affirmed.