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tice of putting the notes endorsed by defendant in the usual course for rendering his assumption absolute, and the defendant, on the other, continued up to the last moment to acquiesce in this practice, by renewing his endorsements without ever requiring demand or notice. This was an unequivocal acquiescence in the sense given by the company to his undertaking, and he cannot be permitted to lie by, and lull the company into a state of security, of which he might, at any moment, avail himself, after making the most of the credit thus acquired.

Judgment reversed, and venire facias de novo awarded.

In many of the States, the notarial protest of a promissory note or inland bill is required by express statute (as under the law of France), and in such States furnishes evidence of the facts stated in it. It has been repeatedly decided in the Supreme Court of the United States, that independent of such a provision, a protest of those instruments is unnecessary and useless. This point was settled as early as the case of Young vs. Bryan, 6 Wheat. Rep. 146, and was affirmed as late as Burke vs. McKay, 2 How. Rep. 66. In this latter case it was also held to be no part of the official duty of a notary, to give notice to the endorsers of a promissory note which has been dishonored, although it is a very convenient and useful practice in commercial cities.

S. P. City Bank vs. Cutter, 3 Pick. 414; Miller vs. Hackley, 5 Johns. 375; Payne vs. Wynn, 2 Bay, 374; Taylor vs. Bank of Illinois, 7 Monr. 579; Merrit vs. Benton, 10 Wend. Rep. 116; Dunn vs. Adams, Parmeter & Co., 1 Alab. 527.

The propriety of this practice is more apparent, when considered in connexion with the decision in Nichols vs. Webb, 8 Wheat. 326, 5 Cond. Rep. 450. The question in that case was, whether the books of a notary public, proved to have been regularly kept, were admissible in evidence after his decease to prove a demand of payment and notice of non-payment of a promissory note. The note was payable at the Bank of Nashville, and the following are the grounds upon which the Court held that this evidence was proper:

"It does not appear that, by the laws of Tennessee, a demand of the payment of promissory notes is required to be made by a notary public, or a protest made for non-payment, or notice given by a notary to the endorsers. And by the general commercial law, it is perfectly clear that the intervention of a notary is unnecessary in these cases. The notarial protest is not, therefore, evidence of itself, in chief, of the fact of demand, as it would be in cases of foreign bills of exchange; and, in strictness of law, it is not an official act. But, we all know that, in point of fact, notaries are very commonly employed in this business; and, in some of the States, it is a general usage so to protest all dishonored notes, which are lodged in, or have been discounted by the bank. The practice has, doubtless, grown up from a sense of its convenience, and the just confidence placed in men who, from their habits and character, are likely to perform these important duties with punctuality and accuracy. We may, therefore, safely take it to be true in this case, that the protesting of notes, if

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not strictly the duty of the notary, was in conformity to general practice, and was an employment in which he was usually engaged. If he had been alive at the trial, there is no question that the protest could not have been given in evidence, except with his deposition, or personal examination, to support it. His death gives rise to the question, whether it is not-connected with other evidence, and particularly with that of his daughter-admissible secondary evidence, for the purpose of conducing to prove due demand and notice.

"The rules of evidence are of great importance, and cannot be departed from without endangering private as well as public rights. Courts of law are, therefore, extremely cautious in the introduction of any new doctrines of evidence which trench upon old and established principles. Still, however, it is obvious that, as the rules of evidence are founded upon general interest and convenience, they must, from time to time, admit of modifications, to adapt them to the actual condition and business of men, or they would work manifest injustice; and Lord Ellenborough has very justly observed, that they must expand according to the exigencies of society. Pritt v. Fairclough, 3 Camp. Rep. 305. The present case affords a striking proof of the correctness of this remark. Much of the business of the commercial world is done through the medium of bills of exchange and promissory notes. The rules of law require that due notice and demand should be proved, to charge the endorser. What would be the consequence, if, in no instance, secondary evidence could be admitted, of a nature like the present? It would materially impair the negotiability and circulation of these important facilities to commerce, since few persons would be disposed to risk so much property upon the chance of a single life; and the attempt to multiply witnesses would be attended with serious inconvenience and expense. There is no doubt that, upon the principles of law, protests of foreign bills of exchange are admissible evidence of a demand upon the drawee; and upon what foundation does this doctrine rest, but upon the usage of merchants, and the universal convenience of mankind? There is not even the plea of absolute necessity to justify its introduction, since it is equally evidence, whether the notary be living or dead. The law, indeed, places a confidence in public officers; but it is here extended to foreign officers acting as the agents and instruments of private parties.

The general objection to evidence, of the character of that now before the Court, is, that it is in the nature of hearsay, and that the party is deprived of the benefit of cross-examination. That principle also applies to the case of foreign protests. But the answer is, that it is the best evidence the nature of the case admits of. If the party is dead, we cannot have his personal examination on oath; and the question then arises, whether there shall be a total failure of justice, or secondary evidence shall be admitted to prove facts, where ordinary prudence cannot guard us against the effects of human mortality? Vast sums of money depend upon the evidence of notaries and messengers of banks; and if their memorandums, in the ordinary discharge of their duty and employment, are not admissible in evidence after their death, the mischiefs must be very extensive.

"But how stand the authorities upon this subject? Do they as inflexibly lay down the general rule as the objection seems to imply? The written declarations of deceased persons, and entries in their books, have been for a long time

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admitted as evidence, upon the general ground that they were made against the interest of the parties. Of this nature are the entries made by receivers of money charging themselves, rentals of parties, and bills of lading signed by masters of vessels. More than a century ago it was decided, that the entries in the books of a tradesman, made by a deceased shopman, were admissible as evidence of the delivery of the goods, and of other matters there stated within his own knowledge. Price vs. Lord Torrington, 1 Salk. 285; S. C. 2 Lord Raym. 373. So, in an action on a tailor's bill, a shop book was allowed as evidence, it being proved that the servant who wrote the book was dead, and that this was his hand, and he was accustomed to make the entries. Pittman vs. Maddox, Salk. 690. In the case of Higham vs. Ridgeway, 10 East's Rep. 109, it was held, that the entry of a midwife in his books, in the ordinary course of his business, of the birth of a child, accompanied by another entry in his ledger of the charge for the service, and a memorandum of payment at a subsequent date, was admissible evidence of the time of the birth. It is true, that Lord Ellenborough, in giving his own opinion, laid stress upon the circumstance, that the entry admitting payment was to the prejudice of the party, and therefore like the case of a receiver. But this seems very artificial reasoning, and could not apply to the original entry in the day-book, which was made before payment; and even in the ledger the payment was alleged to have been made six months after the service. So that, in truth, at the time of the entry, it was not against the party's interest. And Mr. Justice Le Blanc, in the same case, after observing that he did not mean to give any opinion as to the mere declarations or entries of a midwife who is dead, respecting the time of a person's birth, being made in a matter peculiarly within the knowledge of such a person, as it was not necessary then to determine that question, significantly said, 'I would not be bound at present to say that they are not evidence.' "In the recent case of Hagedorn vs. Reid, 3 Camp. Rep. 379, in a suit on a policy of insurance where a license was necessary, the original not being found, it was proved, that it was the invariable practice of the plaintiff's office (he being a policy broker), that the clerk who copies any license sends it off by post, and makes a memorandum on the copy of his having done so; and a copy of the license in question was produced from the plaintiff's letter book, in the handwriting of a deceased clerk, with a memorandum on it, stating that the original was sent to Doorman; and a witness, acquainted with the plaintiff's mode of transacting business, swore, that he had no doubt the original was sent according to the statement in the memorandum. Lord Ellenborough held this to be sufficient evidence of the license. And in Pritt vs. Fairclough, 3 Camp. Rep. 305, the same learned judge held, that the entry of a copy of a letter in the letter book of a party, made by a deceased clerk, and sent to the other party, was admissible in evidence, a letter book being punctually kept to prove the contents of the letter so sent. And he observed on that occasion, that if it were not so, there would be no way in which the most careful merchant could prove the contents of a letter after the death of his entering clerk. The case of Welsh vs. Barret, which has been cited at the bar from 15 Mass. Rep. 381, is still more directly in point. It was there held, that the memorandums of a messenger of a bank, made in the usual course of his employment, of demands on promissors, and notice to endorsers, in respect to notes left for

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collection in the bank, were, after his decease, admissible evidence to establish such demands and notices. And the learned Chief Justice of the Court, on that occasion, went into an examination of the grounds of the doctrine, and put the very case of a notarial demand and protest of notes, which had been suggested at the bar as a more correct course, as not distinguishable in principle, and liable to the same objections as the evidence then before the Court. We are entirely satisfied with that decision, and think it is founded in good sense and public convenience. We think it a safe principle, that memorandums made by a person in the ordinary course of his business, of acts or matters which his duty in such business requires him to do for others, in case of his death, are admissible evidence of the acts and matters so done. It is of course liable to be impugned by other evidence, and to be encountered by any presumptions or facts which diminish its credibility or certainty. A fortiori, we think the acts of a public officer, like a notary public, admissible, although they may not be strictly official, if they are according to the customary business of his office, since he acts as a sworn officer, and is clothed with public authority and confidence.

"It is therefore the opinion of the Court, that the evidence excepted to in this case was rightly admitted."

Before the decision in Buckner vs. Findley and Van Lear, in which it was determined that bills of exchange drawn between the several States of the Union were to be considered as foreign, the question came up for discussion in Townley vs. Sumrall, 2 Peters, 170, whether the protest of such a bill was to be received as evidence of its dishonor; and the opinion of Mr. Justice Story, which we extract below, contains an instructive exposition of the nature of this instrument, and the grounds of its reception in courts of law.

"The first question that arises is upon the admissibility of the protest of the notary public at New Orleans, as proof of the dishonor of the bill. The protest is for non-payment for want of funds; and it does not appear that there had been any prior protest for non-acceptance. Bills of exchange payable at a given time after date, need not be presented for acceptance at all; and payment may at once be demanded at their maturity. The objection now made does not turn upon this point, but upon the point that the present is not a foreign, but an inland bill of exchange, being drawn in Kentucky, and payable at New Orleans in Louisiana; and that a notarial protest is not in such cases evidence of a demand and refusal of payment. We do not think it necessary in this case to decide whether a bill drawn in one State upon persons resident in another State, within the Union, is to be deemed a foreign, or an inland bill of exchange. Foreign it certainly is not, if by such appellation is understood a bill drawn upon a country under a totally distinct and independent sovereignty and allegiance. Inland it is not, if by that appellation is understood a bill drawn in one part of a territory, on another part, exclusively under the same municipal laws, and exclusively governed by the same sovereign power. It would seem to constitute an intermediate case. Different tribunals in the United States, of great respectability, have, however, differed upon the question; and it may all be left for a final decision, until it constitutes the very turning point of the judgment.

It is admitted, that in respect to foreign bills of exchange the notarial certi

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ficate of protest is of itself sufficient proof of the dishonor of a bill, without any auxiliary evidence. It has been long adopted into the jurisprudence of the common law, upon the ground that such protests are required by the custom of merchants; and being founded in public convenience, they ought, everywhere, to be allowed as evidence of the facts which they purport to state. The negotiability of such bills, and the facility as well as certainty of the proof of dishonor, would be materially affected by a different course; a foreign merchant might otherwise be compelled to rely on mere parol proof of presentment and dishonor, and be subjected to many chances of delay, and sometimes to absolute loss, from the want of sufficient means to obtain the necessary and satisfactory proofs. The rule, therefore, being founded in public convenience, has been ratified by courts of law as a binding usage. But where parties reside in the same kingdom or country, there is not the same necessity for giving entire verity and credit to the notarial protest. The parties may produce the witnesses upon the stand, or compel them to give their depositions. And accordingly, even in cases of foreign bills, drawn upon and protested in another country, if the protest has been made in the country where the suit is brought, courts of justice sitting under the common law, require that the notary himself should be produced if within the reach of process, and his certificate is not per se evidence. This was so held by Lord Ellenborough, in Chesmer vs. Noyes, 2 Campbell's R. 129.

"It is not disputed that, by the general custom of merchants in the United States, bills of exchange drawn in one State on another State, are, if dishonored, protested by a notary; and the production of such protest is the customary document of the dishonor. It is a practice founded in general convenience, and has been adopted for the same reasons which apply to foreign bills in the strictest sense. The distance between some of these States, and the difficulty of obtaining other evidence, is far greater than between England and France, or between the continental nations of Europe, where the general rule prevails. We think upon this ground alone, the reason for admitting foreign protests would apply to cases like the present, and furnish a just analogy to govern it. There is as little doubt that such is the custom in relation to bills drawn on New Orleans, where the jurisprudence of the civil law mainly prevails, and under which acts of this sort are generally verified by notaries. The act of Kentucky of 1798, ch. 57, 2 Littell's Statutes, 101, also recognises the propriety, if not the indispensable necessity of a protest, not only in the cases of foreign bills generally, but of all bills drawn on any persons out of the State, or within any other of the United States; providing 'that the same being returned back unpaid with a legal protest, the drawer and all others concerned shall pay the contents, &c., with legal interest from the time the said bill or bills were protested, the charges of protest, and ten per cent. advance for the damage, &c.' The contract for the acceptance and honor of the present bill was, if made at all, made in Kentucky, and was to be governed by its laws; even supposing that the question whether it amounted to an acceptance or not, was to be governed by the law of Louisiana, where the contract was to be executed. So that in either view of the matter; upon the general custom of merchants, or the lex loci contractus; we think the protest was rightly admitted in evidence. Wherever a protest is required to fix the title of