Atwell v. Grant

Eccleston, J., delivered the opinion of this court. The first bill of exceptions shows that the defendant objected to the admissibility of the evidence offered on the part of the plaintiff, for the following reasons: “ Because the note had not been stamped, as required by law, and because the affidavit was not such as the act of 1844, ch. 280, sec. 8, required to be made, and because the affidavit was made, not before the clerk of the city court of Baltimore, but before the clerk of the criminal court of Baltimore, and because the penalty was paid to the clerk of the criminal court of Baltimore city, and because said affidavit did not meet the requirements of the act of 1844, ch. 280, sec. 8.” Under the 4th article and 16th sec. of the present Constitution, we are disposed to think the affidavit above alluded to, was properly made before the clerk of the criminal court of Baltimore; and that he had authority to receive the penalty. But if this be not so, still the decision below, overruling the objection to the plaintiff’s proof, cannot be reversed; because the act of 1844 has been repealed by the act of 1856, ch. 352, the 5th section of which provides, “That all bills, notes or bonds that have been drawn previous to the repeal of this act, and have not been stamped, shall be as good and valid as though they had been stamped, and all debts that have been created, where the proper vouchers are shown, shall be as valid in law as though the stamp act had never been passed.” ¹⁰⁵ in regard to this repealing law, the court say, in Reynolds vs. Furlong, 10 Md. Rep., 321 , “The passage of this act will relieve the case of all difficulty, upon a subsequent trial, upon the subject of the stamp, as now no stamp is necessary to render the note a valid instrument of evidence.” The second bill of exceptions also presents a question in regard to the admissibility of evidence. The defendant contends that the plaintiff had no right to offer evidence, by Johnson, the notary, that he served upon the defendant a copy of the notice of protest, because a call, at the time of trial, for the production of the same, alleged to have been given to the defendant, was the only notice served on him to produce it, which was not in due time.

But it will be seen, by reference to 1 Greenlf. on Ev., sec. 561, that this objection to the proof offered, cannot be sustained. It is there said, that notice to produce is not necessary, “where the instrument to be proved is itself a notice, such as a notice to quit, or notice of the dishonor of a bill of exchange.” The third bill of exceptions contains the following statement: “And the defendant’s counsel proved, by Johnson, the notary public mentioned in the 2nd exception, that he did not make the demand himself, but that said demand was made by his clerk, Mr. Long, as Mr. Long informed him, and that it was the universal custom of notaries public to make such demands by their clerks, as it was impossible for a notary public to make every demand upon notes left with him, in person. The counsel for the defendant then asked said witness whether he had any record or paper in his possession which would show that Mr. Long had made said demand, and if he had, to produce it. The witness then produced said paper.

The plaintiff’s counsel here asked the defendant’s counsel whether he meant to make said paper evidence in the case, to which he replied,, yes. The paper was then read in evidence, to wit:” The paper, however,