authorities, early and late, on this question seem to be of uniform tenor: 2 Starkie on Evidence, 859; Bull. N. P. 243; 2 Chitty's Crim. Law, 312 a; 2 Archbold's Crim. Pr. & Pl. *602; 8 Russell on Crimes, *95; 2 Roscoe's Crim. Ev. *843; 3 Jacob's Fisher's Digest, 3546 et seq.; 2 Wharton's Crim. Law, sec. 1326; 3 Greenl. Ev., sec. 197; 2 Taylor's Ev., sec. 1668. This requirement as to the medium of proof corresponds with the general rule of law, that the proceedings of a court of record are known only by means of the record itself: Collins v. Bullard, 57 Ga. 833; Rutherford v. Crawford, 53 Ga. 139; James v. Kerby, 29 Ga. 684.

5. There being no direct evidence of the existence, finding, or pendency of any indictment for murder against Eddleman, or of any issue raised upon such indictment, it follows from what has been said above that no proper foundation was laid for charging the jury upon such a hypothesis. The court therefore erred in the part of the charge which, as set out in full, was expressed in this language: "If you believe from the evidence that one George Eddleman was tried for murder in the superior court of Fulton County, and in that case the defendant was administered an oath by the solicitor-general, that, so far as the oath having been taken in some judicial proceeding and having been administered, the case, to that extent, the burden being upon the part of the state, would be made out.". The stenographer's evidence was all appropriate to open the way to the introduction of the evidence given by Heflin on the trial of Eddleman, and for that purpose it was all admissible; but in order to show the actual existence of the case of State v. Eddleman as a judicial proceeding in the superior court of Fulton County, and its identity with the case described in the bill of indictment, it was necessary to go further, and prove by the record an indictment against Eddleman (for he could not have been legally tried without an indictment), and that there was an issue raised upon that indictment, and what that issue was. The bill of indictment in the present case alleges that there was a plea of not guilty, but no evidence whatever as to the plea was adduced. Consequently, the jury trying Heflin did not know by evidence either that Eddleman was indicted, or upon what issue he was tried.

6. For the same reason, it was error to charge the jury thus: "If you believe from the evidence that it was an issue upon the trial of George Eddleman whether, at the time he shot

Gresham, he (Gresham) was advancing upon him with a knife in his hand, or something like a knife, that would be a matter material to the issue." This charge assumes that there was evidence before the jury from which they could ascertain what the issue was which was made up in the trial of Eddleman, and that they could apply thereto the testimony given by Heflin upon that trial, and determine its materiality. 7. Various other special grounds are set forth in the motion for a new trial. Some of them are not fully verified by the presiding judge. Construing those which are verified in the light of the whole charge and of all the facts in the record, we think no material error, further than we have indicated, appears. But the evidence was manifestly deficient on a material element of the case, and the court having committed the errors which we have discussed, the prisoner, as a matter of strict law, is entitled to a new trial. Doubtless, it is only where such a deficiency in the proof is pointed out and insisted upon, that a reviewing court would be under the duty of having the case tried over on account of failure on the part of the state to supply the formal record evidence which the law requires. It would seem that this point was not raised in Elder v. State, 52 Ga. 581, and we are not aware of any case in the Georgia reports in which it has been considered. The clear law of it, however, is as we now declare it, and whether the prisoner be guilty or innocent, he cannot be punished until he is legally convicted.

Judgment reversed.

JUDGES-DISQUALIFICATIONS OF: See note to Ex parte Harris, 23 Am. St. Rep. 550. To the cases there cited may be added the following, in which the judge was held to be disqualified by his previous connection with the litigation: Johnson v. State, 29 Tex. App. 526; State v. Burks, 82 Tex. 584; Cullen v. Drane, 82 Tex. 484. On the ground of interest, a judge is disquali fied to pass on the homologation of an account, when the assignee of a claim transferred by him attempts to enforce its payment by an opposition to the account; for although the clain has been transferred without recourse, yet there is an implied warranty as to the existence of the debt, and the judge is interested to that extent: Succession of Jan, 43 La. Ann. 924. But in a proceeding instituted by the State Bar Association to disbar an attorney, the presiding judge of the circuit is not disqualified for trying the case because he is a member of the association: Ex parte State Bar Ass'n, 92 Ala. 113. Nor, under a statute requiring a property interest in an action to disqualify a judge from sitting therein, will the fact that he signed a petition on the question of changing the location of a county seat disqualify him from sitting in and deciding a mandamus proceeding instituted by the petitioners to compel the proper officers to call an election on the question of changing such

seat: Sauls v. Freeman, 24 Fla. 209; 12 Am. St. Rep. 190. Nor will the fact that a judge is disqualified from trying a cause render him incompetent to make orders that are merely formal: Moses v. Julian, 45 N. H. 52; 84 Am. Dec. 114; Littrell v. Wilcox, 11 Mont. 77.

PERJURY - EVIDENCE. - Declarations and acts of a person, in order to be received in evidence, must be contemporaneous and connected with the principal fact; they must constitute a part of the res gestæ, or serve to illustrate such principal fact: State v. Day, 100 Mo. 243. Declarations made preparatory to a particular litigated act, which tend to illustrate and give character to the act in question, are admissible as part of the res gestœ: Hinchcliffe v. Koontz, 121 Ind. 422; 16 Am. St. Rep. 403. As to perjury generally, see extended note to State v. Shupe, 85 Am. Dec. 488-501.

JUDICIAL RECORDS AS EVIDENCE.

The record of a judgment is the only proper evidence of itself: Weigley v. Matson, 125 Ill. 64; 8 Am. St. Rep. 335.

MAY V. JONES.

[88 GEORGIA, 308.]

LIBEL-PUBLICATION OF FALSE PROTEST BY NOTARY PUBLIC.-The protest, by a notary public, of a draft for non-acceptance, before due presentment for payment, is unauthorized, and its publication is a libel, for which the notary is liable in an action by the acceptor, who alleges that the protest and its publication were falsely, fraudulently, and maliciously made, and calculated to injure him in his credit and business.

BANKS LIABILITY FOR MALICIOUS PROTEST OF DRAFT BY NOTARY PUBLIC. - A bank is not generally liable for the negligence or misconduct of a notary public employed by it to protest negotiable paper in his official capacity. To render the bank liable as a joint tort-feasor with a notary public for negligently and maliciously procuring the latter to make a false protest of a draft, the malice of the bank in the transaction must be specially alleged and proved.

PLEADING. JOINT GENERAL DEMURRER by two defendants to a declaration which sets forth a good cause of action as to either of them should be overruled.

R. J. Jordan, for the appellant.

Rosser and Carter, for the appellees.

LUMPKIN, J. May brought his action of libel against Jones and the Merchants' Bank of Atlanta for damages to his credit and standing as a business man, by reason of a certain draft being protested for non-payment by said Jones, who was a notary public, and also an employee and agent of the bank. The defendants joined in a demurrer to the declaration, on the grounds that there was no cause of action set out as for a libel; that there was no cause of action set out as for a wrongful protest; and that the bank was not liable for the acts of

Jones, under the allegations in the declaration. The judgment on this demurrer recites that the plaintiff's attorney disclaimed in open court any claim for damages for a wrongful protest, but advised the court that the declaration was intended to be a claim for damages as for a libel only; whereupon the court sustained the demurrer, and dismissed the case, because the declaration contained no legal cause of action. This is the error complained of.

1. The declaration shows that the draft was accepted by the plaintiff, payable at the Atlanta National Bank. In the course of business, after several indorsements, it came to the Merchants' Bank of Atlanta for collection. It was protested by Jones without due presentment for payment at the Atlanta National Bank. The plaintiff avers that he had no notice before the protest that the draft was at the Merchants' Bank, and as soon as he learned this fact he went there and tendered the amount of the draft, that amount being $45.22, which was refused because it had been protested; that at the time of the protest he had several hundred dollars to his credit at the Atlanta National Bank, and the draft, if presented, would have been promptly paid by this bank; that the protest and draft were sent to the source from whence it came; and that the charges in the protest "are false, fraudulent, and malicious, and were made in reference to the plaintiff's trade, and calculated to injure him in his trade or business."

No doubt, as against Jones, a cause of action is sufficiently set out. The declaration distinctly alleges that the charges. in the protest were false, fraudulent, and malicious, and made in reference to the plaintiff's trade. Without a due presentment for payment at the place designated in the acceptance, there was no legal basis for the protest. The object of the protest being to bind the indorsers, due diligence required a presentment at the place where funds were probably lodged to meet the acceptance: 1 Daniel on Negotiable Instruments, sec. 644; 2 Daniel on Negotiable Instruments, secs. 952, 955; Wood's Byles on Bills, *216, and notes. The protest being without proper foundation, false, malicious, and calculated to injure a business man's credit, its promulgation and publication constitute a libel for which the plaintiff may maintain an action: Townshend on Slander and Libel, 2, note; Newell on Defamation, 74; Odgers on Slander and Libel, *13; 13 Am. & Eng. Ency. of Law, 314. See Williams v. Smith, 22 Q. B. Div. 134. It matters not that the protest carries on its face

evidence of its own invalidity. Its validity would probably pass unquestioned even by those who saw the writing, on the presumption in favor of the official act. As to this presumption, see McAndrew v. Radway, 34 N. Y. 511. Moreover, the hurtful consequences to the acceptor's credit would not be confined to those parties immediately interested to inquire into the regularity of the protest. The news of the protest would be quickly spread to each indorser, and become a matter of common knowledge in his business circle. It would run through the complex avenues of trade beyond pursuit and correction by the true character of the protest.

The case of Van Epps v. Jones, 50 Ga. 238, does not conflict with this ruling, but rather sustains it. That was an action in the nature of libel against a notary for a false protest, and this court held that the declaration was demurrable, because it did not allege that the false statement was made in refer ence to the plaintiff's profession as an attorney at law. Here the declaration expressly charges that the statements were "made in reference to plaintiff's trade, and calculated to in-. jure him in his trade or business."

2. But as against the Merchants' Bank no cause of action is set out. The plaintiff's theory is, that as Jones, the notary public, was also an employee and agent of the bank, "the action of defendant Jones in the matter, he acting under the authority of defendant bank, is the action of said bank." This is all the allegation touching the bank's liability. Although there is conflict in the cases, the prevailing and better holding seems to be, that a bank is not liable for the negligence or misconduct of a notary employed by it to protest negotiable paper. The reason is, that the notary is not a mere agent or servant of the bank, but is a pubiic officer sworn to discharge his duties properly. He is under a higher control than that of a private principal. He owes duties to the public which must be the supreme law of his conduct. Consequently, when he acts in his official capacity, the bank no longer has control over him, and cannot direct how his duties shall be done. If he is guilty of misfeasance in the performance of an official act, the bank is not liable: 1 Morse on Banks and Banking, secs. 102 d, 265; Bolles on Banks and Depositors, sec. 465; 2 Am. & Eng. Ency. of Law, 113; 16 Am. & Eng. Ency. of Law, 763; note to Allen v. Merchants' Bank, 34 Am. Dec. 313; Hyde v. Planters' Bank, 17 La. 560; 36 Am. Dec. 621; Tiernan v. Commercial Bank, 7 How. (Miss.) 648; 40 Am. Dec. 83; Agricultural Bank v. Com