And now, by 1 G. 4. c. 92. s. 3., his signature may be impressed by machinery.

[In an action against the endorser of a note, evidence that the defendant has said that the maker of the note informed him that payment had been duly demanded of him, will not prove a demand. (a)]

Where notice is to be sent by the post, proof of putting it into the post is (41) sufficient.

Proof of sending one of two duplicate notices by the post. may be established by the duplicate notice, without giving notice to produce that which was sent. (42)

Proof of sending notice by letter may be established, without giving notice to produce that letter. (42)

Proof that duplicate notices were written in order that one might be sent, and that a letter was sent to defendant at that time, will be sufficient evidence that such letter contained the notice, if defendant, on notice, does not produce such letter. (42)

[(a) Tower v. Durell, 9 Mass. R. 337.]

(41) Saunderson v. Judge, ante, p. 128. 178.; [and other cases cited p. 178. note, (3).]

[The court were unanimously of opinion that "evidence of the letter containing notice having been put into the postoffice, directed to the defendant, (an endorser,) at his place of residence, was sufficient proof of notice to be left to the jury; and that it was unnecessary to give notice to the defendant to produce the letter before such evidence could be admitted." Lindenberger v. Beall, 6 Wheat. R. 104.]

(42) Roberts v. Bradshaw, 1 Stark. 28. In an action by endorsee of a bill against drawer, plaintiff's clerk proved that on the day the bill was dishonored his master gave him two papers to compare, purporting to be notices of the dishonor of the bill, one of which he produced; it was objected that the one produced could not be read unless notice had been given to produce the other; Lord Ellenborough thought otherwise, and said a letter acquainting a party with the dishonor of a bill was in nature of a notice, and it was unnecessary to prove notice to produce such letter; plaintiff could not then prove specifically that any notice was sent, but he proved that the same day he sent a letter to defendant, the contents of which his witness did not know, and that he had given due notice to produce that letter; Lord Ellenborough thought this sufficient evidence that the letter amounted to notice, for if it did not, defendant might produce it; and plaintiff had a verdict. Defendant moved for a new trial, but the Court of King's Bench refused a rule.

[So notice by letter may be proved by a copy of the letter, without giving notice to produce the original. Kine v. Beaumont, 3 Brod. and Bing. 288; S. C. 7 Moore, 112. See also Lindenberger v. Beall, supra, and Johnson v. Haight, 13 Johns. R. 470.]

.

But it has been held that proof that a notice was put into the post either the day it ought to have been sent or the day following is not (though notice to produce is given) sufficient evidence that the notice was sent in time. (43)

And that it cannot be submitted to the jury for their consideration. (43)

[After the death of a person, usually employed to make presentment to the makers, and give notice to the endorsers. of notes, as a sworn bank messenger or notary public, the book of such person in which he recorded his proceedings upon notes, is admissible evidence to prove a presentment or notice. (a)

The protest of a note by a notary, is after his decease evidence of the demand and notice stated in the protest. (a)

(43) Lawson v. Sherwood, 1 Stark. 314. In an action against an endorser, it was necessary for plaintiff to prove that notice was sent to the defendant the second day after the bill became due; a witness proved that he sent him a notice two or three days after the bill became due, but whether it was the second or third day he could not state; notice to produce was proved, and it was urged for plaintiff, that as defendant did not produce what had been sent, this was evidence to go to the jury that the notice was sent on the second day : but Lord Ellenborough thought otherwise: he said the non-production only entitled plaintiff to give parol evidence of its contents; plaintiff was bound to give notice on the second day, and evidence that he gave it either on that or the - following day could not be left to the jury as evidence that he gave it on the second. Plaintiff was theorfore nonsuited.

[(a) The messenger of the State Bank kept a book in which he entered his doings with respect to notices to makers and endorsers of notes belonging to the bank and of those left for collection. The bylaws of the bank made it his duty to keep such a book, and to take an oath faithfully to perform his duty. In an action against the endorser of a note which had been left in the bank for collection, it was held that the book of a deceased messenger, after proving his handwriting, was admissible evidence to go to the jury to show a demand on the maker and notice to the endorser. Welsh v. Barrett, 15 Mass. R. 380.

In an action against the endorser of a note payable at the Nashville Bank, the notary who made the demand and gave the notice having died before the trial, the plaintiff offered in evidence his protest, which stated that he had made a regular demand and given notice to the endorser, and the deposition of a witness which stated that the notary kept a book in which be recorded copies of the notes protested by him and of the protests, and memorandums of the manner of giving notice. A copy of the protest was annexed to the deposition. This evidence, though objected, to was admitted; and a verdict given for the plaintiff. On Error,-Story J. delivered the opinion of the court. "Memorandums made by a person in the ordinary course of his business, of acts or matters which his duty in such business requires him to do for others,

But where a memorandum in the register of a notary deceased before the trial, merely stated that notice to the endorser of a note was put into the post-office, but did not state where the endorser resided, or to what place the notice was directed, or that any inquiry was made to ascertain his place of residence, it was held that the memorandum was not sufficient evidence of notice. (a)

It has however been ruled at nisi prius, that the entry of

in case of his death, are admissible evidence of the acts and matters so done. A fortiori we think the acts of a public officer, like a notary public, admissible, although they may not be strictly official, if they are according to the customary business of his office, since he acts as a sworn officer, and is clothed with public authority and confidence." Judgment affirmed. Nicholls v. Webb, 8 Wheat. R. 326. See also Halliday v. Martinet, infra; and Sharpe v. Bingley, 1 S. Car. R. 373.]

[(a) In an action against the endorser of two notes, the plaintiff offerred in evidence the protests of Bleecker, a notary public who had died before the trial, which stated that he had made diligent inquiry for the maker, in the city of New York where the notes were dated, but could not find him: he also offered the register of the notary in which were inserted copies of the notes and protests, and which stated that he had put notices for the endorser in the post-office. A clerk of the notary testified that it was the usual course of business in the notary's office to make inquiry to ascertain the place of the endorser's residence, and if it could not be found to put a notice in the post-office, and that he had no doubt such inquiry was made in this case, and that the endorser's residence could not be ascertained, though he did not know the fact. Nonsuit. Woodworth J. delivered the opinion of the court. "I am satisfied on principle and authority that the evidence was competent, and that there was due diligence to demand payment of the maker.""It remains wholly uncertain whether diligent inquiry was made for the endorser, and that he could not be found; and whether he resided in the city of New York or at what other place. If the notary had stated, that the endorser could not be found, he would have made out sufficient to entitle the plaintiff to recover; but to charge an endorser by merely proving the general practice of the office in other cases, accompanied by the opinion of a witness not resting on any recollection or knowledge, but manisfestly derived from such usual practice only, would in my judgment be dangerous." Judgment affirmed. Halliday v. Martinet, 20 Johns. R. 168.

But in a previous case where the evidence of notice to the endorser of a bill consisted of the deposition of the notary who protested the bill, who stated that it was his usual practice on the evening of the day of protest in all cases to give notice in writing to endorsers residing at a distance by putting a notice directed to the party at his place of residence into the post-office, and that he had no doubt notice in this case was duly given, though he could not recollect positively; and that it was possible he might have given the notice to the holder to be forwarded; the evidence of notice was held to be sufficient in the first instance. Miller v. Hackley, 5 Johns. R. 375.]

a clerk of a notary in his books, stating search for the maker, and notice to the endorser, could not be received in evidence in an action against the endorser, though the clerk at the time of the trial was absent on a voyage. (a)

In an action against the drawer of a bill by endorsees, an agreement between the defendant and the plaintiff's endorser, which recited that the bill in suit among others was overdue, and was or ought to be in the hands of the endorser, was held to be evidence of notice to the drawer, though the plaintiff was no party to the agreement. (b) (c)]

Production of the instrument is (44) sufficient evidence of a protest.

[A protest of an inland bill or note is not evidence of a demand or notice. (d)

In an action upon a lost note the plaintiff must prove its loss and contents by the best evidence in his power.

It seems that a notarial copy may be received in connexion with other evidence, to prove the contents of the

[(a) By Van Ness J. in Cummings v. Fisher, Anth. N. P. 1.]

[(b) Gunson v. Metz, 2 Dow. and Ryl. 334; S. C. 1 Barn. and Cres. 193.]

[(c) As to what is evidence of notice or a waiver of it, see Jones v. Fales, and other cases, ante, p. 204. note, (c.)]

(44) Anon. 12 Mod. 345. To prove a protest, the plaintiff produced an instrument attested by a notary public; and though it was insisted that he should prove this instrument or at least give some account how he came by it, Holt C. J. ruled that it was not necessary.

[See also Fenwick v. Sears, 1 Cranch, 259. In this case the questions,--whether the acts of a notary public, who certifies himself to be duly commissioned and sworn, are valid if he be duly appointed, but not sworn and whether between the parties to a bill, the certificate of the notary who protested it, that he is "duly commissioned and sworn," be not conclusive evidence of the fact,-were argued, but no opinion given.

The certificate of a notary under his notarial seal, is primâ facie evidence that he is duly commissioned by the governor. The court said that it had been the daily practice to receive such certificates without objection. Browne v. Philadelphia Bank, 6 Serg. and Raw. 484.]

[(d) Nicholls v. Webb, 8 Wheat. R. 326; Union Bank v. Hyde, 6 Wheat. R. 572; Cummings v. Fisher, Anth. N. P. 1.

In Pennsylvania a protest of a note by a notary has been held to be evidence of the demand and notice stated in the protest, by virtue of the statute of that State of January 2, 1815, which enacts that the official acts, protests, and attestations of all notaries public, may be received as evidence of the facts therein certified. Browne v. Philadelphia Bank, 6 Serg. and Raw. 484.]

note, but it is not necessary for the plaintiff to produce a notarial copy. (a)

In an action on a lost bill after its existence was proved, the plaintiff was in one case allowed to prove its loss by his own oath. (b)]

On a judgment by default in an action upon a bill or note, no (45) evidence need be given. (c)

[(a) In an action upon a lost note a notarial copy was permitted to go to the jury connected with other evidence which showed that the makers had admitted their liability upon the note, although the notarial copy was the only evidence of the date and amount of the note. Peabody v. Denton, 2 Gallis. 351. See also Anderson v. Robson, 2 Bay,

495.

In an action on a lost note, Thompson J. who delivered the opinion of the court, said, "Proof of the contents of a lost paper ought to be the best the party has in power to produce, and at all events such as to leave no reasonable doubt as to the substantial parts of the paper. But to have required a notarial copy, would have been demanding that of the existence of which there was no evidence, and which the law will not presume was in the power of the party; it not being necessary that a promissory note should be protested." Renner v. Bank of Columbia, 9 Wheat. R. 581.]

[(b) Meeker v. Jackson, 3 Yeates, 442. The court said that the plaintiff was a witness from the necessity of the case.]

(45) Bevis v. Lindsell, Str. 1149. On executing a writ of inquiry in an action on a note, the plaintiff did not produce the subscribing witness, but offered other evidence that it was the defendant's hand, and the court held that sufficient; "for the note being set out in the declaration is admitted, and the only use of producing it is to see whether any payment is endorsed upon it."

Mills v. Lyne, B. R. H. 26 G. 3. On a writ of inquiry in an action upon a note, the sheriff directed the jury to give nominal damages only, because the plaintiff could not prove the note. Lawrence insisted that the plaintiff was bound to produce the note (because a receipt of part might have been endorsed thereon) and to prove the defendant's signature; but per Buller J. "If you had paid part you might have pleaded it, but you have let judgment go for the whole;" and the court set aside the inquisition.

Green v. Herne, 3 Term. Rep. 301. Upon a rule nisi to set aside an inquisition against the acceptor of a bill of exchange, it was urged that the bill, though produced before the jury, was not proved; but the court held that by suffering the judgment the defendant admitted the acceptance of the bill, and that he was liable to its amount: and Buller J. said, "the only reason of producing the bill is to see whether any part of it is paid."

[(c) But the note itself must be produced, or its absence accounted for, though it is not necessary to prove the note. And if a note be produced varying from the declaration, the plaintiff will not be allowed to prove that the variance was occasioned by mistake, and that the note produced was the one intended to be described in the declaration. Sheeby v. Mandeville, 7 Cranch, 208.]