To a petition for rehearing filed by L. M. Cox and A. Duvall,
JUDGE WILLIAMSdelivered the following response :
As was said in the opinion, the bill of exchange sued on was payable in Cincinnati. The protest of the Ohio notary public, who demanded the payment of the bill, is made part of the petition and filed with it. This protest recites, after protesting for non-payment, that the notary “ notified the drawee and indorsees thereof, by written notice, as follows: Robert Harmon one notice, directed to him at Sherburn, Fleming county, Kentucky, * * * and deposited said notices in the post-office in this city this day, postage paid.”
The only response of Robert Harmon as to notice, is, that “he never had due notice, of any notice at all, of the protest thereof.” This is a mere denial that he ever received the notice, but does not controvert the facts stated by the notary, that he had protested the bill for non-payment, and had that day deposited a written notice thereof in the post-office in Cincinnati, postage paid, addressed to Robert Harmon, Sherburn, Fleming county, Kentucky.
If notice be properly addressed and deposited in the post-*326office, this will be deemed due diligence, and the party will not be held responsible for the miscarriage of the mails. (1 Parson on Notes and Bills, 478, and numerous authorities referred to in note v.) Regarding the strong tendency of more modern times, both legislative and judicial, to relax the rigid rules of the past as to notice, and the great propriety of recognizing as an official act of the notary the depositing of notices in the post-office, thereby benefiting the parties, who are to be charged, by an earlier notice than they would likely otherwise get, we are strongly inclined to regal’d the statements of such facts in the notarial protest, when it is made part of and filed with the petition, as material and to be taken as confessed, unless controverted by the answer, and further proof as unnecessary.
But this is not the onty ground upon which the decision may well be based. The Ohio Legislature has enacted that “ the instrument of protest of the notary public, accompanying any bill of exchange or promissory note, which has been protested for non-acceptance or'non-payment, shall be held and received in all courts of this State as prima facie evidence of the facts therein certified,” subject to be contradicted by other evidence. (Chap. 75, sec. 10, 1 vol. Ohio Rev. Stat., by Suian <f Crutchfield, page 874.)
By section 5, of an act approved January 16, 1864 (Sess. Acts, p. 14), our Legislature enacted “ that when any bill of exchange, or other commercial paper, has heretofore, or shall hereafter, be protested in any other State of these United States, in which it .is made payable, and by the laws of said State the notary public, or other officer legally authorized to protest the same, is required to give or send notice of the dishonor thereof to the parties, or when his certificate, or a copy thereof, that such notices were sent, is evidence thereof in the courts of such State, the same shall be received as evidence in all the courts of this Commonwealth, In all actions on such bills of exchange, and have the same effect as evidence, as is given to such evidence in the courts of such State.”
Although we have found no judicial expounding of the Ohio statute by her courts, yet we cannot doubt, from the general terms used, that the statements that notice was given, and *327the manner of giving contained in the protest, would be received by the courts of that State as prima facie evidence; indeed, we apprehend this was the controlling reason of the enactment, as the protest would be received as evidence of demand and dishonor by the commercial law and usage of the country. If this be the correct interpretation of the Ohio statute, our statute gives the same validity and effect to it in this State as it would be entitled to there.
This is a suit in equity; the protest was referred to as evidence and as a part of the petition. No bill of exceptions were necessary to make it a part of the record, or to show it was regarded as evidence.