Fortier v. Field

17 La. 587

• Court: Supreme Court of Louisiana
• Decided: January 15, 1841
• Status: Published

Opinion

Mobpht, J.

delivered the opinion of the court.

•[688] The defendant being sued as indorser of a promissory note drawn by O. F. Zimpel, pleaded the general issue. Judgment was given in favor of plaintiff, whereupon defendant moved for a new trial, which failing to obtain, he appealed.

The only evidence of a demand on the drawer is the declaration of the notary in the act of protest that he asked payment of the note of F. Frey, the attorney in fact of the d/rtmer. The certified copy of the protest, made out in conformity with the Act of 1827, proves only the demand itself and the manner and circumstances of such demand, but it is no evidence of extrinsic facts therein mentioned which form no part of official acts and doings of the notary. The agency of Frey should have been proved on the trial like any other fact. It cannot he considered as one of those circumstances accompanying the demand, which must necessarily be within the personal knowledge of the notary, and of which the act of protest must he taken as evidence under the statute. This deficiency in the proof was the ground upon which the motion for a new trial was made to the judge below, but it was overruled on the ground that defendant’s answer contained no specific denial that Frey was the agent of Zimpel. It appears to ns that a new trial should have been granted. The defendant was not bound to make any specific denial of a fact of which he was perhaps ignorant; and of which, under the general issue, he had a right tó require proof.

It is therefore ordered that the judgment of the parish court be reversed, and that this case be remanded for a new trial, tho appellee paying the costs of this -appeal.