
    Fortier v. Field.
    Where the notary states ho demanded payment of F. F,, the attorney in fact of the drqwer the notary’s statement is no evidence of the agency. It should have been proved on the trial like. any other fact. — 131>. 342, and cases there noted.
    Appeal from the parish court for the parish and city of New Orleans.
    This is an action on a promissory note executed hy O. F. Zimpel and indorsed by the defendant. The latter pleaded a general denial.
    The notary states in his protest that he “ asked payment of F. Frey, the attorney in fact of the drawer of the note,” &c.
    On the trial the note and protest were offered in evidence. There was judgment for the plaintiff, and after an unsuccessful effort to obtain a new trial the defendant appealed.
    labwrre, for the plaintiff,
    urged, the affirmance of the judgment.
    
      Loelcett S Micou, for the appellant,,
    insisted that the judgment should he reversed, for want of proof of the agency of Frey, of whom payment was .demanded. Until there was evidence exhibited that Frey was agent no recovery could be had. The mere statement of the notary is no evidence of this agency. It was no part of his duty to show the agency.
   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.  