Scott v. Brown , 240 Pa. 328 ( 1913 )

Opinion by

Mr. Chief Justice Fell,

At the trial of an action by the holder of a promissory note against an endorser the plaintiff offered the note in evidence together with the certificate of the notary by whom protest had been made. It appeared from the certificate that the notary had presented the note at the bank where it was payable on the day that it was due and demanded payment thereof which was refused, that he had protested it and notified the maker and endorsers of the presentation, demand and refusal. This was followed by proof by the notary that after protesting the note, he handed it to his clerk with instructions to mail notices which he furnished for the purpose to all parties to the note, to such addresses as he had obtained or had the means of obtaining. And by further proof by the notary’s clerk that he had within an hour of the dishonor of the note mailed notice of the presentation, demand and dishonor of the note to the defendant at Fallsington, Bucks Co., Pa., with notice that he would be looked to for payment. The defendant offered no testimony, but presented a request for binding instructions, which was refused, and after verdict hie moved for judgment non obstante veredicto on tbe ground that there was no proof that Fallsington was tbe post office to wbicb notice should have been sent under the Negotiable Instrument Act of May 16, 1901, P. L. 194. Section 108 of tbe act provides that where a party to a note has not added an address to bis signature and notice is sent by mail it must be sent “(1) Either to tbe post office nearest to bis place of residence or to tbe post office where be is accustomed to receive bis letters, or (2) If be live in one place and have bis place of business in another, notice may be sent to either place, or (3) If be is sojourning in another place, notice may be sent to tbe place where be is sojourning.”

Tbe plaintiff could have gone to tbe jury on bis offers of tbe note and tbe notary’s certificate of protest without further proof and tbe single question raised by tbe appeal is whether having shown by bis witnesses that tbe notice was mailed to Fallsington, be was required to go farther and prove that this was tbe proper post officé to wbicb to mail it under tbe Act of 1901. Tbe Act of January 2, 1815, 6 Smith’s Laws 238, wbicb made tbe certificate of a notary evidence of the facts therein contained was extended by tbe Act of December 14, 1854, P. L. (1855) 724, so as to include notice to drawers, acceptors and endorsers in respect to tbe dishonor of bills and promissory notes. It has been uniformly held in our cases that tbe certificate of a notary of notice of protest is prima facie, evidence of tbe facts stated therein and that in tbe absence of contradictory proof it is conclusive. In Kase v. Getchell, 21 Pa. 503, it was said that notice to an endorser is part of tbe official duty of a notary and when duly certified and not contradicted or questioned, the presumption that always arises in favor of official acts requires us to bold that it was given according to law, and in Starr v. Sanford, 45 Pa. 193, that tbe Act of 1854 makes such a certificate prima facie evidence and unless rebutted it must have a conclusive effect.

Tbe notary certified that be bad given notice to tbe defendant. Presumably, since bis act was an official act, it was properly performed and bis certificate stand-. ing alone entitled tbe plaintiff to go to tbe jury. If tbe notary bad certified that be gave notice by mail to Fallsington, tbe same presumption as to regularity and legality would have arisen for presumably be sent notice to tbe right place. Proof that tbe notice was mailed to Fallsington was not contradictory of nor inconsistent with tbe notary’s official certification of notice to tbe endorser and it did not destroy tbe prima facie effect of tbe certificate nor repel tbe presumption to wbicb it gave rise.

Tbe judgment is affirmed.