| La. | Mar 15, 1837
delivered the opinion of the court.
The defendant is appellant from a judgment against him, as drawer of a bill. His counsel contends that he is not liable, because there was no demand upon the drawee, and that the plaintiffs cannot avail themselves of his promise to pay the draft, because this promise was made while he was ignorant that no demand was made. The evidence of the demand is presented in an instrument purporting to be a protest.
The greatest portion of the state of Alabama was théretofore a part of the Mississippi territory; by the laws of which, notarial instruments were required to be authenticated by a seal, containing the coat of arms of the territory, the name and surname of the notary, his official capacity, and the place in which he exercised his office. After the erection of Alabáma into an independent state, the legislature adopted the coat of arms of the former territory, as that of the new state. In a later digest of the laws of Alabama, the law of the Mississippi territory just cited, is inserted; and by a late act of assembly, is declared to be still in force,
The protest under consideration, is not authenticated with a sea^ the one above described. The one used by the notary, has neither his name nor surname, but only the initials of them; neither has it the coat of arms. Witnesses have testified, that a seal like the one, the impression of which appears on the protest, is used by the notary in . rr r . , 't . . authenticating all his acts; that the correctness ox his conduct, in this respect, has never been questioned, and no 0^jec^on ever made to the reading of them in evidence, before the objection was taken during the trial of the present case, in the Parish Court. The form of public instruments regulated by the laws of the country in which they are made; and the protest in this case, lacking the seal, which the law of that state prescribes, it appears to us, ought not t0 received in evidence in our courts. The laws of Ala- . bama being produced, we cannot be induced to disregard , ., . ,, , ' them by any parole evidence to the contrary.
There being no evidence of a demand on the drawee, we cannot presume one. De non apparentibus et non existentibns, BCtd&Hl est lex.
If there was no demand on the drawee, the defendant was not liable. And if, being ignorant, that no such demand was made, he thought himself liable,'and promised to pay the draft, the promise was made in error, and not binding, nU , 'r , , , . - , , , . „ . ° lhe counsel for the plamtuis has urged, that if the defendant seek to avail himself of his error, he ought to show that no demand was made. In this conclusion wé cannot concur, The law does not require impossibilities, and it is not to prove that no demand was made. As, however, the justice of the case is probably with the plaintiffs, we think its ends will be promoted by remanding the case for a new trial, ■
It is, therefore, ordered, adjudged and decreed, that the judgment of the Parish Court be annulled, avoided and reversed, and the case remanded for a new trial, the plaintiffs and appellees paying costs in this court.’