¶1We are of opinion that the court below did not erf in overruling the objection to the admissibility of the notary’s protest and certificate. The petition was not sufficient, if proper exception had been taken to it, because it failed to allege that the defendants were" merchants, or the factors or agents of merchants; and it is only in one of these cases that the statute permits the payee of a bill to fix the liability of the other parties to it, by protest and notice. But the courts cannot look with favor upon objections taken to testimony during the progress of a trial, upon *272the ground that the pleadings are insufficient, when there has been no exception to the pleadings. It is only where pleadings are wholly defective, and show no cause of action or no defence, that objections to testimony, because of the insufficiency of the pleadings, ought to be entertained. In' the present case, the paper which is the foundation of the suit, has the appearance of being mercantile paper, and in the absence of proper exceptions and demand for proof, the court will indulge such a presumption.
¶2The judgment of the court below is affirmed.
¶3Judgment affirmed.