The action is against the defendant, an indorser of a promissory note.
The defense relied upon was want of service of notice of protest.
The proof on the subject of notice consisted of: First, the certificate of the notary certifying to the fact that the notice of protest was mailed to the defendant; second, the evidence of the plaintiff proving that he mailed a copy of such notice to defendant.
At the trial the defendant undertook to prove that he had never received any notice of the dishonor of the note, but the testimony was ruled out by the trial judge under the defendant’s exception. This was error.
The certificate of the notary was merely presumptive evidence of the fact of service of notice (Code, § 923), and it was quite competent for the defendant to negative this presumption by proof that he had never received the notice.
This would have created a question of fact for the jury to determine, whether the notice was as a matter' of fact deposited in the post office or not.
If the jury found that the deposit was actually made, it would be good service of the notice upon the defendant whether he received it or not.
For the error in excluding this evidence the judgment must be reversed and a new trial ordered, with costs to the appellant to abide the event.
Judgment and order affirmed, with costs.