Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1867-01-20

An IN19RSER OF PEOMISSORS
NOTE SEEKS THE NEW TRIAL o.
a JUDGMENT RENDERED. AGAINST
HIM.
/ The statements Of nOtarles in regard to extrin
! sic facts concerning demands or service o
! notices is not even prima faCie evidence o
] such facts, which Elust be proved dehors th'
I certificates.
Mr.. Justice Ilsley rendered the opinion
/ of the court:
Philip Drumm vs.. J. H. Bradfute anC
D. B. Penn, No. SO. Appeal from the
| fourth district court of New Orleans
/ The defendant, D. B. Penn, sued as the
| indOTseT Of a pTOmissOry note, pleaded
/ the general issue. Judgment was ren-
| dered in favor Of the plaintiff, whereupO1
/ the defendant moved for new trial
( which failing to obtain, he appealed.
! On the trial of the case in the ceurt
| below, the defendant Penn objected tC
| the admission of the note in evidence
and of all other testimony to prove his
| Endorsement of the note sued on, on the
ground that the petition contained nc
allegation that the note sued on was in
dorsed by him. The note and the ac.
cOmpanying documents, viz: the pro-
| test and the certificate of the notice Ol
| protest were annexed TO the petition as a
part of it, and this with an allegation
| that the plaintiff was the owner and
| holder of the note, would convey notice
of the Endorsement of the defendant,
which was apparent upon the note. See
Nett ct al. VS.. Brauder, II La. $40.
II would certainly have been more
regular that the plaintiff should have
specially alleged the Endorsement, but
as that fact was revealed by the note
which made part of the petition, the
defendant could not be surprised by the
introduction Of evidence to prove it.
No objection was made TO the act OF
protest, and the notice Of protest, which
were in proof, but the defendant con-
tends that it is not shown that he ever
was notified of the failure of the drawer
to pay the note, or of the protest, and
that he is therefore discharged.
The nOtary's certificate reads thus :
% a notice 10 ID. B. Penn was left at the
residence OF J. 2. Shorlridge, his attor-
ney in fact with a female white servant,
the said ShOrtridge, attorney, not being
m The act OF the legislature OF 1877,
re-enacted in 1855, make the certificate
of the notary a notice of protest on an
indOrser, evidence of all matters therein
stated, but that evidently means of all
matters which it is his duty to certify,
fact of agency of "a party on whom q de-
mand is made or a notice served.
This was the view on this question
taken by the court in Fortier vs.. Field,
XVII La. Rep, in which the court re-
manded the case for "a new trial, because
there was no other proof than the state
ment of the notary in his certificate that
Frey, from whom he demanded thepay-
ment Of the note, was the agent Of the
drawer of it.
We mold this to be the correct doctrine
that the statements of notaries Of ex-
trinsic facts in relation to demands, or
service of notices in these certificates, is
not even prima facie evidence of such
facts which must be proved dehOTs the
certificate.
No such evidence was adduced by the
plaintiff, and the case must be remanded.
It is therefore ordered, adjudged and
decreed, that the judgment Of the district
court be annuled, avoided and reversed,
and that this case be remanded for a new
trial, the appellee paying costs of appeal.
Samuel Flower, for appellant; T. H.
Howard, for appellee.