COLLIER, C. J.
— 1. The duplicity complained oí in the •declaration is, that after setting'forth, that the bill was protested for non-acceptance, it goes on to allege a protest for non-payment also. In Evans v. Watrous, (2 Porter’s Rep. 205:) it was determined “ that under our statute, which prohibits special demurrer, where there is a clear and substantial cause of action set forth in a declaration, though it may contain irrelevant or superfluous matter; or though it may contain duplicity, yet the defendant shall be held to answer it.” It is not pretended that the -declaration does not contain a good cause of action; but the objection is, that some of its allegations are superfluous, and consequently afford no cause for reversal.
2. It is insisted that the county court should have rejected the protest, for non-acceptance. There can be no doubt, if it were ¡the only evidence adduced by the defendant in error on the trial, that it did not authorize a verdict in his favor. In O’Connell v. Walker, (1 Porter’s Rep. 263:) the protest for non-payment recited that the notary “ went to the counting house of Wm. C. Hallett, agent of J. E. O’Connell, on the day of the protest, but found no person there to receive notice of the protest,” this court held that the recital was no evidence of the agency of Hallett, and say that but for our statute of 1828, “ declaring the effect of -notarial protests,” the protest would not be *329evidence of a demand, refusal and notice, that being made evidence of these facts, it could not be used in proof of a distinct and different matter. The principle of that decision is, we think, decisive to show the effect that should be given to the statement, in regard to the agency of Fontaine & Freeman, and the answer of Freeman.
But the question in the case before us, did not arise upon the effect of the protest, or rather, its sufficiency, as an instrument of evidences but the inquiry is, was it admissible for any purpose? The protest under the statute cited, if the agency of Fontaine & Freeman had been shown, would have been proof of a demand and refusal to accept. It was then material evidence for the defendant in error, and he might, by proof aliunde, have shown that Fontaine & Freeman were the agents of Scott, Bush & Henley, and that due notice of the dishonor of the bill was given to the plaintiff as drawer. These facts being shown by extrinsic evidence, the protest would have fixed the liability of the plaintiff; and as no exception was taken for the want of such proof, we would intend, if necessary, that there was no defect of evidence.
In Bell v. Rhea, Conner & Co. at this term, it was determined, that if the evidence tends to prove a material fact, and be otherwise unexceptionable, the court should allow it to gó to the jury. That case is a conclusive' authority to show, that the county-court did not err in admitting the protest, and the consequence is, its judgment must be affirmed.