[assumpsit – bill of exchange – notary public]

Maclaren v. Samuel

Supreme Court of New South Wales

Dowling C.J., 29 August 1841

Source: Dowling, Select Cases, Vol. 6, State Records of New South Wales, 2/3464, p. 271

[p.217]

[1841

29th August]

                                                             Maclaren v Samuel

Assumpsit by the indorsee against the indorser of a Bill of Exchange for 1071£. drawn by S & A. Lyons on J. Walker at Adelaide in South Australia, averring acceptance, dishonor, protest for non payment, & notice thereof to the Deft.  To the action there were several pleas, & amongst others, that on which the Deft mainly relied, namely, that the Bill was not duly protested as alleged.  At the trial before Stephen J. & a special Jury on the 4h June, in order to prove that the Bill had been duly protested, a paper writing in the usual notarial form of a protest signed by a party describing himself under his name "Notary Public" & sealed with a common private seal, having no legend thereon designating it a notarial official seal was produced.  It came by due course of post returning the Bill to the Plf from Adelaide as being dishonored.  The protest appeared to have the names of two subscribing witnesses to it, who were not called.  It was objected on the part of the Deft that as it was not proved to be an official or notarial seal, and did not ever purport to be such, it could not be taken to be so, [p.218] far by the law Merchant, though a protest was evidence of what was stated therein, yet it was only itself admissible when under a due & proper official seal.  For the Plf it was contended that as the seal attached to the Protest purported in fact to be the seal of the Notary Public, it must be taken to be his official or notarial seal.  The learned Judge ruled that it was not necessary to call the subscribing witness to prove this species of instrument & left it to the Jury as a question of fact whether the seal to the protest purports to be an official or notarial seal, - for if it did, then he thought it proved itself, & he was of opinion that the Jury might consider this question, not with reference merely to the seal itself, but to the entire contents of the instrument.  The Jury found specially - "We find that the seal to the document produced was the seal of the party signing it, & that he was a notary, but whether the said seal was his official seal, or notarial seal we have no evidence".  Upon this finding a verdict was recorded [p.219] the Plf, with liberty to the Deft to move to enter a nonsuit or obtain a new trial.  A motion was made accordingly on a former day in the alternative terms as reserved, first, for a nonsuit, on the ground that the protest could not have been received in evidence at all an official seal apparent on the face of it, & secondly for a new trial, on the ground of misdirection on the part of the learned Judge, in telling the Jury that in Judging of the character of the seal they might take into consideration the contents of the paper to which the seal was attached.

It was argued in support of the latter point, that it was matter of law for the Judge, & not for the Jury to say whether the instrument produced was a notarial act, for it was the seal alone which authenticated the instrument, & not the writing to which the seal was attached.  The only question was whether it had the seal of office, 7 until that was established nothing could be gathered from the instrument itself.  Now it was [p.220] clear that this instrument could not be received for any purpose, unless the seal attached to it appeared on the face of it to be an official seal.  As a protest it was nothing unless it had an official notarial seal to it.  It must as all events purport to be an official seal.  The protest of a notary public, by law proves itself, without further proof - provided it purports to have an official seal.  Here the seal did not purport to be the official seal of the notary.  As a common private seal of the party it was no seal at all.  To be an official seal, it must have some sort of inscription or sign, significant of the purpose for which it is used.  It must be typical of the office of the person using it.  A great seal of historical research & learning upon the origin and use of seals was evinced in the argument but in no case decidedly in point was brought to bear upon the main question in contest.  We have fully considered the case, and are of opinion first, that there [p.221] should be no nonsuit and secondly that there ought not to be a new trial granted.

As to the latter alternative of the motion, we think that under all the circumstances of the case the learned Judg properly left it to the Jury as a question of fact for them to determine whether or not the instrument produced was what it purported to be - namely a notarial protest under a notarial seal.  The Judge could have no personal or judicial knowledge of the validity of the instrument or of the seal attached to it.  It was not a matter of law, but of fact, whether the instrument was what it purported to be.  Had he taken upon himself to say that it was not a notary's official seal which was attached would have usurped the province of the Jury.  He must have rejected it at once upon the arbitrary assumption of his own knowledge that it could not have been sealed with a notarial seal or he must have left the question to the Jury.  The more correct course was to leave it to the Jury, (which was [next page not numbered] special, and many of whom were mercantile men) to say, whether upon the whole instrument it was what it purported to be - a notarial protest or not.  There being therefore, in our opinion no misdirection, the ground on which the motion was made for a new trial fails.

Then as to the motion for a nonsuit, on the ground that the protest required what may be technically called an official seal, that is, a seal with a legend expressing it to be the official seal of the notary, it is not so clear to us upon the authorities cited, that such a seal was absolutely necessary to give legal validity to the protest.  The Jury have found specially as a fact that the writer of the protest produced was a notary, but they could not take upon themselves to say that the seal attached was an official seal.  We are not called upon to determine whether a notarial protest, must necessarily & absolutely be under [next page also not numbered] an official seal to give it credence, if the instrument on the face of it purports in fact to be the act of a public notary.  It is unnecessary to go into the history of the origin of notaries public & other duties of their office, & of the precise form & manner in which their notarial acts are to be authenticated.  Whether a notarial protest requires an official seal to give it authenticity is so doubtful that we cannot in this instance take upon ourselves to determine the point.  We have looked into many civil law authorities touching the office of a notary public (which seems to have had its origin in the time of the Ancient Romans) but we so not find that a seal at all is absolutely requisite to give validity to a notarial act.  In two celebrated works "Lybreghts office of a Notary" and "Voets de fide instrumen Forum" the office & duties of a notary are elaborately discussed.  in prescribing the requisites of a notarial act, these writers in terms indicate that the mere subscription in the hand [p.222] writing of the notary is all that is required.  Undoubtedly in point of fact, where forms of notarial acts are given in books of practice, seals are appended, & although it would appear to be the custom to append such seals, yet where writers of the highest authority upon this very subject do not insist that a notarial act would be invalid for want of a seal, we are not called upon to hold that in this instance the instrument produced was inadmissible in evidence because the seal appended to it did not bear upon the face of it a legend importing that it was a notarial seal.  In the form given in Chittys Commercial Law 4 Vol. 344 the notary signs his name with the addition "Notary Public" as was done here & opposite his name there is to be a seal - but there is no requisite that it should be an official seal with a legend upon it - Any seal used by the notary would seem to be sufficient.  Looking to the law of England on the subject we find that the Statute 9 & 10 Wm 3. c.17. relating to inland Bills of Exchange enacts that the holder may get the Bill protested by a Notary Public & in default of such notary public, by any other substantial person in the place in the presence of two witnesses, & a form of protest is [p.223] given to which no seal is prescribed.  Although South Australia may be considered in a legal sense a Foreign Country, yet it is a Colony in which the English law prevails, & is as to this Colony only a foreign country as Ireland would be in a similar case with respect to England.  Where s Bill is drawn by a party in one British [possession upon a party resident in another in both of which the same general law prevails it is not an unfair course of reasoning to hold that it by the law of England respecting inland Bills, a notarial protest does not require a seal, the law of England in this respect is the law of the Colony from which the protest in question emanated, & that a protest made by a notary at Adelaide does not require an official seal to give it validity.  We do not however determine that some seal is not necessary.  In this case it is not requisite so to determine, for here the Jury have expressly found that the instrument had a seal, & that the writer of the protest was a notary, & that the seal thereto was his, the notary's seal. [p.224]  From this finding we are entitled to draw the inference that the seal was fact adopted as, or used by him as his notarial or official seal, & consequently that there was sufficient to give validity to the protest as a notarial act by the law merchant.  No decided authority has been quoted to shew that an official seal would be absolutely necessary to perfect the notarial act of protesting a Foreign Bill of Exchange.  Even the best writers quoted leave the matter entirely in doubt.  For instance, in Brooks office of Notary p.7 so strongly relied upon, is by no means decisive.  All that he says is "The expression notarial act is one which has a technical meaning, & it seems generally considered to signify the act of authenticating or certifying some document under the signature & official seal of a notary, or of authenticating or certifying as a notary some fact or circumstance by a [p.225] written instrument under his signature only.  Whether that is or is not the correct definition if the solemnity called a notarial act, it is clear that the statute 41 Geo. 3. C.79 interdicts unqualified persons from performing notarial acts, whether under seal or not".  This text writer therefore leaves the matter in doubt, whether the notarial seal is at all necessary to give validity to such a notarial act as this.  The very words "it seems generally considered" imply that it is a moot point, whether the notarial act, shall or shall not be sealed; for it is put as an alternative definition what shall be deemed a notarial act - signing with an official seal or signing only.  The treaties on the law of Evidence carry the matter no farther.  In Lord C.B. Gilberts treaties p.103 it is said "The protest is made before a public notary in case of non acceptance or non payment.  The notary is a public person appointed to whose protestation all foreign Courts give credit, & the protest is evidence that the Bill is not paid.  Beyond seas the protest under the notary's hand is sufficient to shew the Court, without producing the Bill itself" &c.  All that is said in the note to Peakes Ev. 80 is that "where a Bill of Exchange has been protested in a foreign country for non acceptance or non payment, the protest under the [p.226] seal" (not official seal) of a notary public has been usually received as sufficient evidence of the presentment, without proof even of the protest having been signed by him of that the seal affixed is what it purports to be.  This seems to be a relaxation of the strict rules of evidence for the conscience of the mercantile world; who in such cases give credit to instruments "of that nature",  For this he cites 12 Mod. 10. Mod. 66 2. Roll Rep. 34.  In 1 Phillips 362 it is said "a protest as to the presentment & non acceptance of a foreign Bill of Exchange attested by a notary Public is evidence of those facts in an action upon the Bill".  In Starkie Ev 266 it is said "In the case of a foreign Bill a protest is necessary for it is part of the custom of Merchants.  The protest is proved by the mere production".  In Chitty on Bills it is said "Whenever notice of non acceptance of a foreign Bill is necessary, a protest must also be made which though mere matter of form, is by the Custom of Merchants, indispensably necessary & cannot be supplied by witnesses or oath of the party, or in any other way, & it is said, is part of the Constitution of  foreign Bill of Exchange & the mere production of this protest attested by a notary public without proof of the signature or affixing of the seal, will, in the case of a bill payable @ protested out of this country be evidence of the dishonor of the Bill & to it all Foreign Courts give credit."  In the last Edition of the same work it is said "A protest apparently under the seal of a notary public, & made abroad, need only be produced & prove itself without shewing by whom it was made." For this [p.227] he cites the anonymous case in 12 Mod 345. 2d Roll 346. 10 Mod 66. & Peake 80.  Indeed all the text writers upon this point refer to the same case in 12h Mod as the authority for the positions laid down.  Now upon looking to the anonymous case in 12h Moden it is not stated that the protest there produced was under seal.  that Lord Holt C.J. says is, "that the protest was received in evidence without proof, & which was attested by a notary Public, " - but without saying anything about the seal.  In the absence, therefore, of any express authority shewing that a notarial protest must be under an official seal with a legend to that effect, the finding of the Jury in this case that this protest was in fact made by a notary, & sealed with his seal, is sufficient to justify the conclusion that the seal so used by him was used as and for his official seal. [p.228]  It may be difficult to account for this anomalous exception from the general rule of evidence applicable to written instruments by the general law of England otherwise than as is said, for mere convenience amongst merchants; but if it be clear, according to the authorities, that a notarial protest proves itself, without evidence of the signature or affixing of the seal, we cannot conceive why less credit should be given to this instrument, signed & attested as it was by a person subscribing himself "Notary Public", because the seal affixed happened not to have those words engraved thereon.  If it was in fact his seal, & used by him in verifying the notarial act, it must be taken as conclusive in the perfection of an act which after all is only a matter of form according to the custom of Merchants.  It appears to us therefore, that not withstanding the very elaborate & learned argument which has been addressed to us on this subject, that the objection is too refined & ought not to prevail against the justice of the case, unless we were fettered by some decisive authority controlling our decision.

Rule Discharged.