demand required by law, and given to the défendant timely notice of non-payment. What is a legal demand, or timely notice, has already been sufficiently considered. Evidence of a formal presentment of a note payable at a bank need not be given where it is proven that the note was in the bank and in possession of its officers on the day of its maturity, and that the maker had no funds there for its payment.' 982. In an action against the drawer or indorser of a foreign bill, it is incumbent upon the plaintiff to prove, beside the presentment and notice of dishonor, a protest for non-acceptance or non-payment. But the protest, when made by a notary in a foreign state, and attested under the seal of his office, proves itself, and is evidence of presentment and refusal.' And it is now settled that bills of exchange drawn in one state of the Union and payable in another, are foreign bills, within the meaning of the rule which makes the notarial protest prima facie evidence of the presentment and dishonor of such bills. But since the giving of notice of dishonor to the drawer or indorser is not the official duty of the foreign notary, his notarial certificate is not evidence of that fact, although it contains a statement showing that due notice has been given.* The necessity of proving the protest of a foreign bill is superseded, in an action against the drawer, by showing that he had no effects in the hands of the drawee, and *695 no reasonable expectation that the bill would be honored; or by showing that he has admitted his liability, by promising to pay the bill when called upon for that purpose; or by showing his request that it might not be protested; or by proving that a protest of the bill was prevented by inevitable accident, or by superior force, or by any casualty not attributable to the want of diligence in the holder or his agent. As against the indorser of a foreign bill. the want of a protest is not excused, by showing the want of funds in the hands of the drawee; 1 Huffaker v. Nat. Bk. of Monticello, 13 Bush, 644. 2 Chitty on Bills, 655; Greenleaf on Ev., § 183. 3 Halliday v. McDougall, 20 Wend., 81; S. C., 22 Wend., 264. 'Buckner v. Finley, 2 Peters R., 586. * Bank of Rochester v. Gray, 2 Hill R., 227; 8 Porter R., 258. • Legge v. Thorpe, 12 East, 171; 2 Camp., 310, 188; Byles on Bills, 204; Greenl. on Ev., § 184. VOL. II.-20 305 with this exception, the protest may be dispensed with, in like manner as in an action against the drawer.' $983. Proof of notice.-The averment of notice to the drawer or indorser, must be proved like any other fact. This is the general rule; to which respect must be had in the construction of the statutory enactments modifying the principles of the commercial law. In this state, the certificate of a notary, under his hand and seal of office, is made presumptive evidence of the protest of bills of exchange and promissory notes, and of the service of notice on the parties to the paper; but the statute does not apply, where the defendant denies having received the notice, and supports his denial with his affidavit. So that wherever the fact of notice is fairly put in issue, the parties are bound to come into court, with their witnesses, prepared to prove or disprove the allegation. If, however, the notary be dead, insane or absent, so that his present attendance or testimony cannot be procured in any mode 696* provided by law, the original protest, under his signa ture and seal, both of them being proved, is presumptive evidence of the demand, of acceptance, or of the payment therein stated; and a written memorandum in his handwriting, or signed by him, at the foot of the protest, or in his register of official acts, is, in like cases, presumptive evidence that 1 When the drawer adds to the bill a request or direction that the bill, in case it is dishonored, be returned without protest, retour sans protet, or, sans frais, he, and perhaps the indorsers, cannot insist upon the want of a protest. Chitty on Bills, 165. 220 Wend., 81; 2 Hill, 227. 33 R. S., 474 (Banks' 5th ed.). "In some of the United States, the certificate of the notary, under his hand and official seal, is by statute made competent evidence, prima facie, of the matters by him transacted, in relation to the presentment and dishonor of the bill, and of notice thereof to the parties liable." 2 Greenl. on Ev., § 183, and note. Ante, 463-467, and 585, note; Cockrill v. Loewenstine, 9 Heisk., 206. The certificate of the notary under his hand and seal is by the statute of this state presumptive evidence of demand and notice, unless the defendant annexes to his answer an affidavit denying the receipt of notice of nonacceptance, or of non-payment of the bill or note; Young v. Catlett, 6 Duer, 437; and the usual verification of an answer denying service of notice is not enough to exclude the certificate; Arnold v. Rock River R. Co., 5 Duer, 207. The notary's certificate is made by statute in many of the states prima facie proof of the service of notice, as well as of demand and refusal to accept or to pay. Ante, 463-467, and 585, note; Daniel v. Downing, 26 Ohio St., 578. notice of dishonor has been sent or delivered at the time and in the manner therein stated.' $984. At common law, what a man has said, when not under oath, may not, in general, be given in evidence when he is dead; because his words may have been misconstrued, or misrecollected, as well as because it cannot be known that he was under any strong motive to declare the truth. But what a man has actually done and committed to writing, when under obligation to do the act, it being in the course of the business he has undertaken, and he being dead, there seems to be no danger in submitting to the consideration of a jury." Accordingly, it was held competent, even before the passage of the statute defining and slightly amplifying the right, to produce the protest of a deceased notary, or his register of official acts, as prima facie proof of demand and refusal, and notice to the indorser. On the same principle, the memorandum of a clerk to a bank, or to a notary, made in the usual course of his employment, is competent evidence after his decease to prove a demand on the maker of a note, and notice to the indorsers.* 985. In like manner, a written memorandum made by the clerk of a notary at the time of the transaction, may be read in evidence as a link in the chain of testimony, to fix the time when the notice was given, though the clerk himself be called as a witness, and unable to state the time from his own recollection." And when the entry in the register is abbreviated, *it is competent to prove by a person skilled *697 in such matters what words the abbreviations stand for." 13 R. S., 474, Banks' 5th ed. Welsh v. Barrett, 15 Mass. R., 380. In this case the book of a deceased messenger of a bank, in which he had entered memoranda of demands and notices to the makers and indorsers of notes left at the bank for collection, was admitted in evidence to prove demand on the maker, and notice to the defendant as indorser of a note so left for collection. * Idem; and Halliday v. Martinet, 20 John. R., 168; 2 Wend., 369; 6 id., 284. 4 Shelden v. Benham, 4 Hill R., 129; Nichols v. Goldsmith, 7 Wend., 160. 5 Hart v. Wilson, 2 Wend., 513; Shove v. Wiley, 18 Pick., 558. The memorandum is sufficient proof of the facts stated in it, even though the witness cannot recall the transaction, if he states that the memorandum would not have been made unless the facts had occurred as stated in it. Cole v. Jessup, 10 N. Y. (6 Seld.), 96. 4 Hill R., 129. But the entry of a clerk in the books of a deceased notary, cannot be read in evidence, without calling the clerk as a witness; nor can his testimony, given on a formal trial, be proved, on the ground of his absence from the state.' Though the entry of the notary in his register, and the memorandum of a clerk or cashier of a bank, made in the discharge of his duty, may be read in evidence of the facts stated, after his decease, it will not avail the plaintiff if the statement itself be insufficient to prove the dishonor of the instrument, and notice to the indorser." $986. It was formerly held that evidence of the contents of a written notice could not be given without first proving the service of a notice on the opposite party to produce the written notice; but it is now settled that secondary evidence may be given of a written notice of the dishonor of a bill, upon which the action is brought, without showing a previous notice to produce the writing. Nevertheless, it is frequently advisable to give the defendant notice to produce the written notice or letter notifying him of the dishonor; since by so doing, the plaintiff raises a presumption in favor of the sufficiency of the contents of the notice given." And where the 698* plaintiff finds it necessary to prove notice of the dishonor of other bills than that on which the action is founded, he 1 Wilbur v. Selden, 6 Cowen R., 162. "The rule as to admitting what a witness swore to upon a former trial, is supposed to be this, that to render such testimony admissible, it must be between the same parties, and the point in issue the same; and the words of the witness must be given, not what is supposed to be the substance of his testimony. The witness must also be dead" Decided in 1826. The witness must remember the testimony to which he swears. Leightner v. Wicke, 4 Serg. & R., 203; but the substance may be proved, if the witness can give the substance of his whole testimony. Wolf v. Wyette, 11 id., 149, 337; Cornell v. Green, 10 id., 16. 220 John. R., 168; Farmer's Bank of Maryland v. Duval, 7 Gill. & John., 78. 3 Shaw v. Markham, Peake's Rep., 165; Langdon v. Hulls, 5 Esp. R., 156. Kine v. Beaumont, 3 Brod. & B., 288; Ackland v. Pearce, 2 Campb., 601; Johnson v. Haight, 13 John. R., 470. A copy of the notice made at the same time may be regarded as a duplicate original. 5 Wheat., 104; Paton v. Lent, 4 Duer, 231. 5 Roberts v. Bradshaw, 1 Stark. R., 28; Hetherington v. Kemp, 4 Campb,, 194. must always give the defendant notice to produce the letters or writing giving such notice." $987. In regard to the proof of notice, it may be well to refer to some of the cases showing the manner in which the service may be proved. Thus, in one case, the notary called as a witness stated that he presented the bill for acceptance, and protested it for non-acceptance; that it was his usual practice, as notary, on the evening of the day of the protest, and in all cases of protest, to give notice in writing to the indorsers residing at a distance, by putting such notice in the post-office, directed to the party at his place of residence; and he had no doubt notice in this case was duly given, though at that distance of time he could not recollect positively; and that it was possible he might have given the notice to the holder to be forwarded. This evidence, say the court, was certainly sufficient, in the first instance, to support the averment of due notice, and there being nothing to affect it, it will support the verdict.❜ In another case, where a party proved that he wrote a letter to the adverse party, and his clerk testified that he copied it in the letter book produced, and that it was his invariable practice to carry the original letters to the post-office, as soon as he had copied them in that book, and that he very seldom handed them back; the evidence that the letter was sent, was held prima facie sufficient, though the clerk did not recollect putting the identical letter in the post-office." In a still earlier case, the fact to be established was notice of the dishonor of a bill; and the plaintiff proved that he wrote a letter to the defendant containing such notice; that the letter was put on a table, where, according to the usage of his counting-house, letters for the post were always deposited; and that a porter carried them thence to the post office. *699 But the porter was not called, and there was no evidence as to what had become of the letter, after it was put on the table: Lord ELLENBOROUGH held this insufficient, saying, "Had you called the porter, and he had said that, although he had no recollection of the letter in question, he 1 Mood & M., 335; 6 Bing., 306; Chitty on Bills, 658. 2 Miller v. Hackley, 5 John. R., 375. Thallhimer v. Brinckerhoff, 6 Cowen R., 90. 309 |