Duckert v. Von Lileinthal

11 Wis. 56 | Wis. | 1860

By the Court,

Paine, J.

The judgment in this case must be reversed, for the reason that there was no proof of proper notice served upon the defendant as indorser. This court has decided, in Kimball vs. Bowen, 2 Wis., 524, that the certificate of the notary is no evidence of the contents of the notice; and that decision was followed in Smith vs. Hill, 6 Wis., 154. The statement of the defendant, that he received a notice, and came down to see if he was liable, throws no light upon this point. It shows no more than the receipt of the notice, which was already shown by the certificate. For this reason, the court should have granted the motion for a non-suit.

We think, also, that the certificate does not show any proper presentment of the note for payment. The notary states that he “ presented it at Montello, and demanded payment, which was refused.” But it does not state to whom or at what place it was presented. For aught that appears, it may have been presented to a stranger. The certificate should show presentment to the maker, or its legal equivalent, and this should not be left to intendment or presumption. See forms in Story on Bills of Exchange, 324, note; also, Onondaga County Bank vs. Bates, 3 Hill, 53.

The judgment is reversed, with costs, and cause remanded for a new trial.