the notarial copy upon which the order of seizure was obtained was certified by Marks, notary: See act of 1838, p. 94. In the absence of evidence to the contrary, we are bound to presume that these sworn public officers have not culpably neglected, but properly discharged, their official duty: See Hartwell v. Root, 19 Johns. 346 [10 Am. Dec. 232].

Judgment affirmed with costs.

TRANSFER BY INDORSEMENT.-Each subsequent indorsement, accommodation or otherwise, is essentially an original contract, equivalent to a new note or bill in favor of the holder: Olivier v. Audry, 7 La. Ann. 498. When a plaintiff has transferred his interest in a bill or note, he must show a retransfer at the time of bringing his action to recover. Mere possession of the note or bill will not suffice. When the indorsement is in blank, it is otherwise: Barbarin v. Daniels, Id. 481; Mourain v. Devall, 12 Id. 93; Freeland v. Hodge, Id. 177; Hart v. Windle, 15 Id. 265.

PRESUMPTION OF OWNERSHIP.-The holders of a bill under regular indorsements are presumed to be its owners: Bolton v. Harrod, 13 Am. Dec. 306. The holder of a promissory note payable to bearer is not bound to show consideration, unless some evidence is given to raise a suspicion that he did not come fairly by the note: Jones v. Westcott, 3 Id. 704; Conroy v. Warren, 2 Id. 156.

POSSESSION OF BILL OF EXCHANGE is evidence of authority to demand payment: Morris v. Foreman, 1 Am. Dec. 235. But an indorser on a bill specially indorsed can not recover against the acceptor merely because he has possession of the bill and protest without showing that he has paid the amount of the bill to a subsequent indorsee: Gorgerat v. McCarty, 1 Id. 270. See also Schaub v. Clark, 47 Id. 554, and notes 557; Russell v. Hadduck, 44 Id. 698, note, referring to other cases reported in this series.

LATHROP V. LAWSON.

[5 LOUISIANA ANNUAL, 238.]

EMPLOYMENT OF NOTARY is not necessary to make demand of a note or to give notice to an indorser.

EVIDENCE OF ENTRIES OR MEMORANDA made by third person, since deceased, while in the course of a professional duty contemporaneous with the act, and connected with it, is admissible.

INFORMALITY IN CERTIFICATE RESPECTING ATTESTATION OF WITNESSES does not render it void.

EVIDENCE SHOWING THAT PARTY WHO MADE CERTIFICATE not properly attested, had died subsequently, is competent.

APPEAL from the East Feliciana district court. The facts are stated in the opinion.

McVea and Winter, for the plaintiff.

A. W. De Lee and Muse and Merrick, for the defendant.

By Court, SLIDELL, J. This case being on trial as to Myers and De Lee, the indorsers, plaintiff offered in evidence the note and the protest made on the tenth of October, 1842, by L. Saunders, parish judge, in his notarial capacity. These were received without objection. Plaintiff then offered the certificate of notice. The certificate is as follows, and was attached to the protest itself: "State of Louisiana, parish of East Feliciana. I certify that the indorsers of the note hereto annexed, and a copy of which is hereon written, were notified of the demand and protest of the same, by written notices directed to Burrell Myers and John L. De Lee, and deposited by me in the post-office at Clinton, Louisiana, this day, October 11, 1842. (Signed) L. Saunders, Parish Judge." It was admitted by the defendants that Saunders was dead, and that the signature attached to this instrument, annexed to the protest, was genuine.

To its introduction defendants objected, on the ground that the certificate was inadmissible, it not having the two witnesses required by the statute. The court below sustained this objection, refused to receive the certificate, and plaintiff reserved his bill, attaching to it the document offered and rejected. Plaintiff being thus deprived of the means of showing notice to the indorsers, there was judgment of nonsuit against him, and he now prosecutes this appeal.

It is true that, under the statute, the certificate of the notary must be attested by two witnesses, in order to make proof per se. But it has been repeatedly held that the statutes of 1821 and 1827 were not intended to change the commercial law as it stood before their adoption; but to afford in aid of commerce a new, convenient, and permanent means of proof. The legis lation was auxiliary, and was not intended to exclude other means of which the party might choose to avail himself.

Had the notary been living, the plaintiff might have brought him upon the stand, upon objection to the informality of the certificate of notice, and proven by parol the manner in which the notices were given. But if the notary be dead, and the party thus deprived of a personal examination, is he to be left without relief? and is there to be a total failure of justice, because the notary has neglected his special duty in a matter of form which was necessary to make the certificate authentic evidence? We think otherwise. Upon proof of Saunders' death, and of his signature to the certificate, the certificate was admissible in evidence under the general rule relative to entries or memoranda,

made by third persons since deceased, in the course of a professional duty contemporaneous with the transaction and connected with it. Thus, where the question was upon the precise day of a person's birth, the account book of the surgeon who attended his mother upon that occasion, and in which his professional services and fees were charged, was held admissible in evidence: 1 Greenl. Ev. 136.

In Poole v. Dicas, 1 Bing. N. C. 649, it was held that an entry of the dishonor of a bill of exchange, made in the usual course of business, at the time of the dishonor, in the book of a notary, by his clerk, who presented the bill, may be given in evidence in an action on the bill, upon proof of the death of the clerk who made the entry. Tindal, C. J., said: "We think it admissible, on the ground that it was an entry made at the time of the transaction, and made in the usual course and routine of business, by a person who had no interest to misstate what had occurred," and he cited Doe v. Turford, 3 Barn. & Adol. 890. There it was the usual course of practice, in an attorney's office, for the clerks to serve notices to quit on tenants, and to indorse on duplicates of such notices the fact and time of service. On one occasion the attorney himself prepared a notice to quit, to serve on a tenant; took it out with him, together with two others, prepared at the same time, and returned to his office in the evening, having indorsed on the duplicate of each notice a memorandum of service on the tenant; two of them were proved to have been delivered by him on that occasion; and it was held on the trial of an ejectment, after the attorney's death, that the indorsement so made by him was admissible evidence to prove the service of the third notice.

In Welch v. Barrett, 15 Mass. 380, the book of the messenger of a bank, who was dead, in which, in the course of his duty, he entered memoranda of demands and notices to the promisors and indorsers upon notes left in the bank for collection, was received in evidence of a demand on the maker, and notice to the defendant as indorsers of a note so left for collection. "There seems to be no danger," said Parker, C. J., " in submitting to the consideration of the jury 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." In Butler v. Wright, 2 Wend. 369, it was held, that the memoranda of a deceased notary of the demand and notice of payment of a promissory note are prima facie evidence of the fact. See also Halliday v. Martinet, 20 Johns. 173 [11 Am. Dec.

262]. So in Nichols v. Goldsmith, 7 Wend. 161, the memorandum of a deceased cashier of a bank was held prima facie sufficient to charge an indorser with notice.

Now, with what propriety can we reject a rule of evidence so well recognized, and so clearly founded in good sense and public convenience? Is it because we have the statutes of 1821 and 1827? But those statutes were made to aid the mercantile community, not to deprive them of means of proof already within their reach. No one will say that a bank or a merchant is bound to employ a notary to make demand of a note, or give notice to an indorser.

But, then, it is said the plaintiff chose to employ a notary, and the statute instructed him how he was to record his notice. Certainly he was bound to do so, in order to give his employee the full benefit of his services and make the certificate authentic proof-proof per se. But if he does not do so, is the bank, for example, to be in a worse position than if its cashier or its messenger had been employed? The very fact that Saunders was a public officer is an additional reason for putting his entry on as good a footing as that of the cashier or messenger. For it was an inducement to employ him, that if he properly discharged his official duty, his certificate would be a permanent authentic document, making evidence per se. And it would be a great hardship, that when the public have been induced by his official character to employ him, they should be made the victims of his negligence to such an extent as that his entries or memoranda should, after his death, be on a worse footing than those of a private individual. If we were so to hold, we should be attributing an undue effect to the statutes, and would occasion great alarm in the mercantile community.

In the case of Davis v. Bourgeat, 3 La. Ann. 121, cited by the defendant, there was no attempt to prove the handwriting of the notary, etc., as in the case of an entry or memorandum by one deceased, so that the point now considered was neither presented nor decided. So in Deblieux v. Bullard, 1 Rob. (La.) 67 [36 Am. Dec. 684]. In the case of the Gas Light and Banking Co. v. Nutall, 19 La. 449, if the present point was raised at all, it was not, so far as we can judge from the report, elaborated at bar nor by the court. If it was the intention of the court to consider an informal certificate as utterly valueless, we are constrained to say that we can not adhere to that opinion.

Judgment reversed, and cause remanded; costs of appeal to be paid by defendants.

MARGINAL ENTRY IN BOOK OF DECEASED NOTARY opposite the protest of the dishonor of a bill, stating that indorser had been duly notified in writing, is admissible in evidence: Bell v. Perkins, 14 Am. Dec. 745. Books of a notary, after his death, are admissible to prove the dishonor of bills left with him for presentment or demand: Spann v. Baltzell, 46 Id. 346. As to the admissibility in evidence of entries made in the usual course of professional employment, clerkship, or agency, see cases collected in the note to Sheldon v. Benham, 40 Id. 274.

LAGRAVE V. MERLE.

[5 LOUISIANA ANNUAL, 278.]

UNDATED SUBSEQUENT CLAUSE ADDED TO OLOGRAPHIC WILL which appears consistent and connected will be presumed to have been written at the same time as the original will. Both will be construed as the will of the testator, in the absence of proof to the contrary.

APPEAL from the St. Bernard district court. The facts are stated in the opinion.

A. N. Ogden, for the plaintiff.

P. Soulé and F. Grima, for the defendant.

By Court, EUSTIS, C. J. John A. Phillippon died in the city of New York on the twenty-sixth of March, 1847. After his death two wills bearing his signature were discovered; one bearing date New York, the twenty-second of April, 1845, and another the parish of St. Bernard, in this state, the twenty-sixth of March, 1846. The domicile of the deceased was in Louisiana. The point upon which this case was determined in the court below was as to the validity and effect of the last will in revoking the former one.

The Louisiana will is in the olographic form. It is written by the testator in his native language, which was the French. Its contents it is not material to state. It concludes to this effect: "Done at the plantation, parish of St. Bernard, this twentysixth day of March, in the year of our Lord one thousand eight hundred and forty-six. JOHN A. PHILLIPPON."

Immediately following is written: "I desire to be exposed eight days after my death: for if I fall into a lethargic sleep, and should be interred, my waking up will be frightful and disagreeable. I charge Anais [referring to his sister, who was a legatee under the will] to watch over the execution of this last request. JOHN A. PHILLIPPON."

"By these presents I declare every other will made by me null and of no value. JOHN A. PHILLIPPON."

"Signed in presence of