Beebe et al. vs. The Real Estate Bank, 4 Ark. 124

By the Court, Dickinson, J. At common law, a party never was required to make profert of a promissory note: the reason was, that it, did not constitute the foundation of the action. It was only evidence of the debt, and its execution was required to be proved upon the trial.

Profert was given upon sealed instruments, because they constituted the gist of the action, and it was required to enable the defendant to plead knowingly. ■ Oyer was granted upon profert being made; and, upon the making ofprofert, the party could then plead a special or general plea of non est fact,um, or set up any other defence which might defeat the cause of action. It was the grade of evidence that determined the character of the pleadings. A sealed instrument proved itself.

Its execution might be denied, but its consideration could not be impeached.- Under our statute, the consideration of sealed and unsealed instruments may both be inquired into, and therefore there is a perfect equality in their grade of evidence. The production of each proves itself, and the consideration for which it was given. This consideration, in both instruments, is liable to be impeached in the same way, but he who impeaches them must do it by plea, supported by affidavit. It certainly cannot be pretended, that it is not necessary to make profert of a sealed instrument under our statute.

Promissory notes carry with them the same evidence of indebtedness that sealed instruments do; and the consideration of both being disproved in the same way, then it necessarily follows, that promissory notes, as well as sealed instruments, under our statute, should be made profert of. This view of the case is strengthened by the words of the act itself, (Rev. Si., chap. 116, sec. 65), which declares that, when any such instrument is lost or destroyed, an allegation to that effect shall excuse the want of proferí.

This positive provision, making profert unnecessary under such circumstances, certainly implies that, in all other cases, except Where the instrument is Ioát or destroyed, profert should be alleged of promissory notes as well as of sealed instruments. The second point presents no difficulty. The language of the act is clear and distinct, allowing ten per cent, interest per annum, after the note, bond, or bill, comes to maturity. Interest is given by way of damages, to compensate for the failure of the debtor to pay at maturity. Having failed, of course he is liable, at the rate as charged in the judgment.

Judgment reversed.