The opinion of the Court was afterwards delivered by
Weston C. J.It was competent for the Judge, in his discretion to receive the testimony of William Rice, the notary, at the stage of the cause he did ; although after the counsel for the defendants had commenced his argument. It did not comport with the usual course of proceedings, which has been adopted in trials to the jury. But that course is not so inflexible in its character, .that it may not be departed from, when occasion requires, under the direction of the presiding Judge. The notary having proved all the facts, for which the protest was adduced, that paper became immaterial; and it is therefore unnecessary to decide upon its admissibility and effect.
The notary testified, that the note was handed to him, by the cashier of the People’s Bank, either at that bank, or at an insurance office. We cannot take it upon ourselves to say, that this furnished no evidence, that the note was left in the bank for collection. It was properly submitted to the jury to pass upon that fact; and they found it was thus left. The demand made and notice given, on the fourth of December, was not tiren out of season, under the statute of 1824, c. 272; and the plaintiff was entitled to a verdict. The exceptions are accordingly overruled.
Judgment on the verdict.