Wetherall v. Claggett

Robinson J., delivered the opinion of this Court. It was admitted by the appellant’s counsel that the protests were legal and competent to prove demand upon and refusal by the maker. The first exception was therefore abandoned. The objections to the evidence of Latimer, raised by the second bill of exceptions cannot be sustained.

The only question at issue in the trial below, was whether the defendant had received due notice of the dishonor of the notes. It is conceded that the protests are insufficient to prove notice, because they do not inform the endorser, that payment was demanded and refused. The plaintiff must therefore invoke' the aid of other evidence, or he must fail in fixing the liability of the endorser. In this State the law is well settled, that the holder may supply auy omission in the notarial protest, however material, by independent proof, provided it be not inconsistent with or contradictory of that contained in the protest.

In Hunter vs. Van Bomhorst, 1 Md. Rep., 504 , the notarial certificate was insufficient, because it did not allege that the notes were at the bank, on thfe day of maturity, and ⁴⁷⁵ this omission, fatal in itself, was supplied by other testimony. The Court said it was “ no contradiction of the evidence contained in the protest, but merely enlarges it, by supplying material omissions.” And in Nailor vs. Bowie, 3 Md. Rep., 252 , the protest was defective because, as in the case now before ns, it did not inform the endorser of a demand and refusal, and yet the Court held that the omission could have been supplied by other evidence. In these cases, the notarial certificates were offered in evidence by the plaintiffs. In the subsequent case of Sasscer vs. The Farmers’ Bank, the protests were also insufficient, inasmuch as they did not aver non-payment of the notes by the maker.

Objection was made as in this case, to the admissibility of evidence to cure this defect, upon the ground that having relied upon the notarial protest to prove notice, the plaintiff could not offer any evidence adding to, or contradicting the same. But this Court held that the evidence did not contradict the record, and Judge Masos said that “ in the case of Graham vs. Sangston, 1 Md. Rep., 59 , and Hunter vs. Van Bomhorst & Co., ibid, 504, this Court recognized the right of the plaintiff to offer evidence of notice, in addition to, if not inconsistent with that contained in the protest;” “and, therefore, when any material circumstance of the transaction has been omitted in the record, it is but proper that the omission should be supplied.” It was insisted upon by the appellant’s counsel, that there was a marked distinction between Sasseer’s case and the one now before the Court, because in the former, the notarial protests were not offered as evidence per se by the plaintiff. But the