Real Estate Bank v. Bizzell

4 Ark. 189

• Court: Supreme Court of Arkansas
• Decided: January 15, 1842
• Status: Published

Opinion

By the Court,

Dickinson, J.

We can see no objection to the instructions. It is true, that our statute makes the certificate of the Notary evidence of the non-payment of the bill, and his notarial act of this fact cannot be questioned; but this provision certainly does not dispense with proof that notice of protest was duly forwarded to the defendant. That proof the holder of the bill is bound to make, and unless he establishes it upon the trial, the defendant is exonerated. It is true, that the Notary certifies that he forwarded notice of protest, by the first mail after the bill fell due, to Murfreesborough; but this is no proof that notice of protest was sent, or that Murfreesborough is the nearest post-office to the residence of the defendant. The certificate of these facts is not a notarial act, and of course they should have been established by proof aliunde; and, failing to do this, the plaintiff has not made out a cause of action against the defendant', and must, therefore, fail in her suit.

Judgment affirmed.