¶1delivered tbe opinion of tbe Court.
¶2Tbis 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.
¶3On 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 the 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.
¶4Let the judgment be affirmed.