Rogers v. Jackson — 19 Wend. 383

Majority

p. 383

Rogers vs. Jackson.

NEW-YORK,

May, 1838.

Headnote

The certificate of a notary of the service of notice of presentment and protest, is defective unless it specify the post-office, nearest to the reputed place of residence of the party to whom the notice is given; it is not enough that it is stated that the notice was put into the post-office at the place of presentment of the note, directed to the party at a particular place, the reputed place of his residence.

Promissory note and notary’s certificate of demand and notice. This was a motion to set aside a report of ieferees. The action was assumpsit against the defendant as the second endorser of a promissory note, dated at “ Paterson Landing,” and payable “ at the bank of New-York.” The making and endorsement of the note was proved by parol evidence, and the plaintiff then introduced a notary's certificate^[1] stating a demand and protest for non-payment, and then proceeding as follows ; “ and I did on the same day, put into the post-office in the city of New-York, a notice of. the said protest, directed to James and John P. Jackson, (endorsers of the said note,) at Paterson Landing, New-Jersey, the reputed place of residence of the said James and- John P. Jackson.” After further evidence relating to other matters, the cause was summed up to the referees by the counsel on both sides. In such summing up the counsel for the defendant objected and contended that the certificate of the notary was defective in omitting to state “ the post-office

p. 384

nearest to the reputed place of residence of the defendant,” an¿ t|jat therefore the defendant was entitled to a report in his favor. The referees, notwithstanding such objection, reported in favor of the plaintiff, and a motion was now made r r 7 to set aside the report.

D. Graham, jun.,

for the defendant, insisted that the statute allowing the notary’s certificate as evidence, being an innovation upon the common law rules of evidence, its requirements should have been strictly complied with, and such was the uniform course of decisions. In support of this proposition he cited, 20 Johns. R. 361, 2 Wendell, 555, 7 id. 364, and 5 id. 136. -

J. L. Wendell,

for the plaintiff, insisted, that the object of the statute was not to establish a new rule of evidence, but merely a new mode of proving the' notice, as was held in 7 Louisiana R. 7, and 8 id. 170, in adjudications upon a similar statute. There was no defect in the certificate: it showed the demand, the protest, the mode of giving the notice, and the reputed plaice of residence of the defendant. ■ These facts were all that were necessary at common law to entitle the plaintiff to recover. That it is not necessary that all the circumstances mentioned in the statute should in all cases be stated in the certificate is manifest from the consideration, that if the notice had been personally served upon the defendant, it could not have been pretended that the certificate would have been defective for not stating the reputed place of residence of the defendant, and the post-office nearest thereto. Besides, the defendant was too late in his objection. The note had been received and read in evidence, 14 Wendell, 243, and other evidence was given before the objection was raised.

By the Court,

The certificate is clearly defective, nor is it aided by the statute of April 23d, 1835, p. 152, § 1, dispensing with the necessity of sending and certifying notice to any particular post-office, unless the endorser direct where. That statute was passed long after this

p. 385

notice was served; and, besides, the statute expressly excepts notes dated anterior to its passage. 1 he note in this case bears date in 1832.

The only question, therefore, is, whether the objection was taken in season. I think it was. Had the objection been preliminary, in other words, addressed to the competency of the certificate, as upon some points of form in its execution, the objection should have been to the reading of it; but not so where the certificate itself is insufficient to make out due notice. It comes in place of the notary’s personal oath or deposition. If he were on the stand, but incompetent, as through interest, you must object before summing up ; but if, being sworn, he fails to prove notice, that is the very place to object. So if his deposition be presented, but informally taken, you must point out the defect, or the court may, after the testimony is closed, disregard the objection. But if the deposition come short, either by itself, or in connection with the other proof in the case, of establishing notice, you go to the jury. It is true that, in either case, you may raise the objection by motion for a non-suit, or to stop the cause, if before referees ; but you are not bound to this course. You may insist on the defect by way of summing up after all the testimony shall have been given on both sides.

Nothing is clearer, than that where proofs by certificate and the like, are by statute substituted for common law evidence, all the forms directed by the statute, whether preliminary or substantial, must be strictly complied with.

Motion granted.