Etting v. The Schuylkill Bank
| Decision Date | 14 April 1845 |
| Citation | 2 Pa. 355 |
| Parties | ETTING <I>v.</I> The SCHUYLKILL Bank. |
| Court | Pennsylvania Supreme Court |
Meredith, for plaintiff in error.—The present party is obliged to resort to this, as his prior endorser has notified him of his intention to contest the matter. The right to a day to transmit notice does not prevail where the parties reside in the same town; it is intended to allow time for mailing. But here the notice was defective, because it stated a protest on the day before the last day of grace; and this is a material fact, and must be stated correctly, Story on Promissory Notes, 349, 299, 330. The court erred in leaving to the jury the question, whether the protest was made on that day or on the 4th; the evidence was in writing of equal force, neither being official. The jury could only guess at the truth.
R. Hare, contrà.—It was a mere mistake of the date; no injury was done; in fact, it was perfectly immaterial, 1 Bay. R. 517. If there was no date, certainly it would be a valid notice.
April 14. GIBSON, C. J.
The notarial certificate of protest was evidence of the fact of protest, but of nothing else; for our statute, which declares that the official acts, protests, and attestations of notaries public certified under hand and seal, shall be evidence of the facts certified, is expressly restrained to the certificates of notaries "acting by the authority of this Commonwealth." The certificate before us, therefore, was not evidence of demand on the maker of the note; and as evidence of the mere fact of protest, which is superfluous in the case of a promissory note, it was immaterial. As there was no other evidence of demand and non-payment, either on the last day of grace or any other, the jury ought to have been instructed that the plaintiff had failed in his proof on that ground.
The notice of non-payment also was vicious. It bore date the evening of the day which preceded the last day of grace, and the defendant was consequently informed by it of nothing more than that the note had been presented and protested for non-payment before it was due — a blunder with which he had nothing to do, and which he was not bound to notice. He had a right to presume that it would be discovered, and that the note would be again presented for payment at the day; of the event of which he would be informed, should it be necessary, in due season. Hearing no more about the...
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