NICHOLLS V. WEBB, 21 U. S. 326 (1823)

21 U. S. 326

U.S. Supreme Court

Nicholls v. Webb, 21 U.S. 8 Wheat. 326 326 (1823)

Nicholls v. Webb

21 U.S. (8 Wheat.) 326


No demand of payment or notice of nonpayment by a notary public, is necessary in the case of promissory notes. A protest is, strictly speaking, evidence in the case of foreign bills of exchange only.

But it is a principle that memorandums made by a person in the ordinary course of his business of acts which his duty in such business requires him to do for others are, in case of his death, admissible evidence of acts so done. A fortiori the acts of a public officer are so admissible, though they may not be strictly official, if they are according to general usage and the ordinary course of his office.

Therefore the books of a notary public, proved to have been regularly kept, are admissible in evidence after his decease to prove a demand of payment, and notice of nonpayment of a promissory note.

This was a suit brought by petition according to the course of proceedings in Louisiana by Webb, the defendant in error, against Nicholls, the plaintiff in error, upon a promissory note dated 15 January, 1819, made by one Fletcher for the sum of $4,880, payable to the order of Nicholls at the Nashville Bank and endorsed by Nicholls, by his agent, to Webb. The answer of the defendant below denied such a demand and notice of nonpayment as were necessary to render clubjuris

Page 21 U. S. 327

him liable as endorser. At the trial, it appeared in evidence that the note became due on 18 July, which was Sunday. The demand of payment of the maker was made, and notice of nonpayment to the endorser was given at the request of the plaintiff below by one Washington Perkins, a notary public, who died before the trial. The original protest was annexed to the plaintiff's petition and was drawn up according to the usual formula of that instrument, stating a demand and refusal of payment at the Nashville Bank on Saturday, 17 July, the 18th being Sunday, and that he, the notary, "duly notified the endorsers of the nonpayment." The plaintiff offered this protest, among other evidence, to support his cause, together with the deposition of Sophia Perkins, the daughter of the notary. This witness stated in her deposition that her father kept a regular record of his notarial acts, and uniformly entered, in a book kept by himself or caused the deponent to enter, exact copies of the notes, bills, &c., which he protested, and in the margin opposite to the copy of the protest made memorandums after notification to endorsers, if any, of the fact of such notification and the manner, and that his notarial records had been, ever since his death, in the house where she lived. And to her deposition she annexed, and verified as true, a copy of the protest in this case. The copy of the protest stated the demand (as supposed by mistake) to have been made on 19 instead of 17 July, 1819, and contained the following memorandum on the margin: clubjuris

Page 21 U. S. 328

"Endorser duly notified in writing 19 July, 1819, the last day of grace being Sunday, the 18th. Washington Perkins." In other respects the protest was in the same form with that annexed as the original to the plaintiff's petition. The defendant below objected to the admission of this protest and deposition in evidence, but his objection was overruled by the court. Whereupon the defendant excepted and the jury returned a verdict for the plaintiff, upon which the court, according to the usual practice in Louisiana, ascertained the sum due and rendered judgment. The cause was then brought by writ of error to this Court.