#### Sullivan ad. vs. Deadman.

On the trial of a ease de novo, in the circuit court, on appeal from the probate court, it is in accordance with the spirit of the statute (sec. 201, chap. 4, Gould's Dig.,) to permit a party to introduce other evidence than that contained in the record of the ease, as tried in the probate court.

The fact that the drawee has no funds of the drawer in his hands, is prima facie an excuse for not giving the drawer notice of the protest of a bill of exchange for non-payment: and if there be any special circumstances entitling him to notice the onus is upon him to prove them.

Appeal from Arkamas Circuit Cou/rt.

Hon. John C. Murray, Circuit Judge.

Garland & Randolph, for tbe appellant.

It is a general principle that where an appellate jurisdiction only is exercised by one court of record over cases coming from another, such cases are to be taken as they were in the latter court, without] addition or diminution, Marbury vs. Madison, 1 Cramch, 137; 4 Bou/o. Inst. 70. Under the statute (secs. 200, 201, chap. 4, Gould's Dig.¿). the Circuit Court, on appeal, is confined to the exceptions taken in the probate court, and required to give the same judgment that court ought to have given ; and this statute cannot govern the practice on such appeals, if a new case is permitted to be made in the Circuit Court.

There was no notice to the appellant of the protest of the bill of exchange, (which objection this court has holden to be well taken, 19 Ark. 484,) and no sufficient excuse for want of notice.

To excuse a want of notice, it is necessary that the drawer *15have no effects in tbe bands of tbe drawee, at any time during tbe currency of tbe bill. Byles on Bills of Exchange 231. Tbe burthen of proof, to excuse a want of notice, is upon tbe appellee in tbis case. 2 Marsh. 152; 3 Bibb 261; 3 Gonn. 172.

WilliaMS & MartiN, for appellee.

Mr. Justice ComptoN

delivered tbe opinion of tbe Court.

Tbis was a proceeding in tbe probate court, for allowance and classification of a claim against tbe estate of Milton Walker, deceased — being a bill of exchange drawn by Walker, and protested for non-payment. Tbe claim was allowed, and on appeal to tbe circuit court, the judgment of tbe probate court was affirmed. An appeal was then prosecuted to tbis court, where tbe judgment was reversed, and tbe cause remanded to tbe circuit court, with instructions that it be there tried de novo. 19 Arh. 484. A trial was accordingly bad, which resulted in a judgment for tbe claimant, and tbe administrator again appealed.

On the trial de novo in tbe circuit court, tbe claimant was permitted to introduce new proof, or, in other words, proof other than that contained in tbe record of tbe case tried in tbe probate court. Tbis was in accordance with tbe manifest spirit of our statutory provision regulating tbe practice in such cases. Gould’s Dig., chap. 4, sec. 201, p. 138. Tbe first objection, relied on, is not, therefore, well taken. But it is insisted that tbe excuse for not giving Walker notice, that tbe bill had been protested for non-payment, was not sufficient. It was shown in evidence, that tbe drawee bad no funds of the drawer in bis bands. Tbis was prima facie an excuse for want of notice; and if any special circumstances existed, which entitled tbe drawer to notice without funds, as that be bad a right to draw in consequence of engagements between himself and tbe drawee, or, that on taking up tbe bill, be bad a right to sue tbe acceptor or any other party, and tbe like, tbe onus was on *16the defendant to show those circumstances — and not having done so, the prima facie excuse made out is not rebutted, and must prevail. See Story on Bills, sec. 312, p. 389.

Let the judgment be affirmed.