Fulton v. Maccracken

Bautol, J., delivered the opinion of this court. This is an action on a promissory note brought by the appellee against the appellant, and one John M. Linn, as partners, constituting the firm of Fulton & Linn. Linn being returned non est, the cause proceeded against the appellant, and this appeal is taken from the judgment rendered against him. In the progress of the trial six bills of exception were taken.

The note sued on was for $2000, dated Cincinnatti, July 10th, 1349, made by William Bradley, at ninety days, payable to the order of Sumner Clark, at the office of the Ohio Life and Trust Company, New York; Sumner Clark endorsed the note to Fulton & Linn, who endorsed it, procured the endorsement of the appellee, Maccracken, thereon, for their accommodation, and obtained a discount of the note for their use, at the “Hocking Valley Bank, of Lancaster, Ohio,” of which bank William Slade, Jr., was cashier. Slade specially endorsed the note as follows: “Pay (o J. Punnett, Cashier, or order.— Wm. Slade, Jr., Cashier.” The note was duly presented and dishonored, and being returned to the Hocking Valley Bank, was paid by the plaintiff. To prove the partnership, the appellee offered, at the trial, a record of a suit brought at Cincinnatti, June 1849, by Lyman Fulton and John M. Linn, as partners, under the firm name of Fulton & Linn, against John It.

Betts and others; which evidence was admitted by the court without objection on the part of the appellant. To prove the presentment and non-payment of the note, he offered the protest made by the notary public, to the admission of which, in evidence, the appellant took his first bill of exceptions. The protest is in the usual form., stating that “the original promissory note hereto annexed” was presented to one of the clerk’s in the office of the Ohio Life and Trust Co., in the city of New York, and payment thereof demanded of him, which he refused, saying, “No funds.” The only objection made to the protest is, that “it contains no copy of the note presented for verification or identification, but only refers to a note annexed.” ⁵⁴¹ The Act of 1837, ch, 253, makes the protest of a notary public, duly made, prima facie evidence of the facts stated in it. It is necessary that it should designate or identify the note to which it refers; this is usually done by putting on it a copy of the note.

But if the original note itself be annexed, as was probably done in this instance, and be referred to in the body of the protest, that would be sufficient. As it appears, however, in the bill of exceptions, the protest is without the note or a copy of it. But on the back is this endorsement: “Wm. Bradley—note, dolls. 2000—for W. Slade, Jr., Cash’r.

Protested Oct. 11th, 1849.—J. P. Giraud Foster, Notary Public and Attorney at Law.” In our opinion this endorsement is a sufficient memorandum to show, that the protest referred to the note sued on, and therefore that the protest was properly admitted as evidence, under the Act of Assembly. The second exception is to the admission in evidence of the notice of protest, given by the notary. No objection is made to the form or contents of the notice, but it is contended the name of the notary ought to have been signed by himself, in his own handwriting, instead of being printed. In our opinion, this exception is not well taken; all that is required is, that the notarial certificate should appear to be the act of the officer.

In Monroe vs. Woodruff & Robinson, 17 Md. Rep., 159 , we decided that such official acts may be performed by a clerk employed by the notary; his name need not be signed by his own hand; it is sufficient that it be affixed by his authority or direction; he may employ the hand of a clerk for that purpose, or a printing press. The third exception was taken to the admission of the depositions of Giraud Foster, the notary, with reference to the sending of notices of protest. In the argument of the cause in this court, we did not understand the appellant’s counsel as insisting upon this exception, and we think there was no error in admitting the evidence. The fact that the notary’s name was affixed in print, as we have before said, is no valid objection. ⁵⁴² nor do we consider any of the other other objections made by the appellant to this evidence, as valid or supported by authority.

The fourth exception presents for our consideration the testimony of the cashier, William Slade, Jr., which, it is contended, was improperly admitted, because it is alleged to be mere vague and indefinite impressions of the witness, without any distinct knowledge or recollection of the facts about which he testified. This exception was very earnestly and ably pressed by the appellant’s counsel in theargument. But after the best consideration we have been able to give the subject, and to the authorities adduced, we are of opinion the testimony was properly admitted. It is impossible to read the witness’ testimony without being struck with his cautious and hesitating manner of stating his recollection and belief.

Taking the whole together, however, we think it was sufficiently definite to be submitted to the jury. The main fact which the witness was called to prove was, the sending of notices of protest to the several