
    Frances A. Seltzer, Administratrix of Henry Seltzer, deceased, vs. Ezra B. Fuller.
    In an action against the indorser of a note, the notary’s deposition was read by the plaintiff to prove the protest and notice; and the defendant read another deposition taken a year previous, of the same notary, about the same note, in which deposition he differed in his statements from those in the other, about the mode of giving notice ; when the plaintiff proved, that when his first deposition was given! his notarial books were lost, and the notary testified from recollection ; when the second was taken they were found, and the notary had refreshed his memory from them. The defendant, by way of rebutting this proof, then offered to prove the notary’s general habit in keeping his notarial record, and that he was in the habit of leaving his memoranda of notices of protest in blank, to be filled up after-wards. The court below rejected the testimony thus offered in rebuttal; held, that it was admissible, and should have been received.
    In error from the Adams circuit court; Hon. O. C. Cage, judge.
    Ezra B. Fuller sued Frances A. Seltzer, administratrix of Henry .Seltzer, deceased, in assumpsit upon an indorsement by Henry Seltzer, in his life-time, of a note made by George W. Tyler, for $500, dated at Natchez, the 3d day of Atay, A. D. 1837, and payable six months after date, to James R. Kane, and by Kane indorsed to Francis Little, by Little to H. Gridley, by Gridley to said Henry Seltzer, who also indorsed it.
    At the November term, A. D. 1843, of the Adams circuit court, judgment was obtained by the defendant, Fuller, against •the plaintiff, Seltzer, for $595 44.
    At the trial, the plaintiff below read to the jury as evidence, the deposition of James K. Cook, taken before J. A. Yanhoesen, J. P. on the 14th November, 1843, which states that the note sued on had been protested, and personal notice duly given of the protest to the said Henry Seltzer.
    The defendant read to the jury as evidence, another deposi*.tion, which had been taken on the 23d day of November, 1842, before' the same justice.; and in which Cook stated that he knew nothing about protesting the note sued on; that he had no recollection thereof whatever.
    John I. McMurran, Esq., on behalf of the plaintiff, proved that at the time the deposition first in date was taken, the notarial record, containing the protest of the note sued on, was lost or mislaid; this evidence was objected to by defendant’s counsel, but the objection was overruled, and the evidence permitted to go to the jury. J. A. Vanhoesen, Esq. was then examined, who stated that at the time the deposition last in date was taken, the witness, Cook, had his notarial record before him; and that deposition accorded with the record.
    The defendant then introduced Dr. A. P. Merrill, who stated that the handwriting with which the blanks were filled up in the said notarial record, which was partly printed and partly written, was that of S. Scott, a clerk in the Agricultural Bank, except the signature and the indorsement on the back, which was Cook’s. The defendant, by her counsel, then propounded this question to this witness :
    
      “ Are you acquainted with the general habit of said Cook m keeping his notarial records ! And was he not in the habit of leaving the memorandums of the notice of protest to be filled up afterwards!”
    Which question was objected to by the plaintiff, and objection was sustained, and the answer excluded. Upon motion for a new trial by the defendants, being overruled, these facts were-embraced in a bill of exceptions, and this writ of error taken. •
    The following causes of error were assigned :
    1. The court below erred in permitting the evidence of John I. McMurran, Esq. with reference to the loss of the notarial record, to go to the jury.
    2. Because the court erred in not permitting the witness, Dr. A. P. Merrill, to answer this interrogatory propounded to him: “ Are you acquainted with the general habit of said Cook, in keeping his notarial records !' And Was he not in the habit of leaving the memorandunls of the notice to be filled up after-wards ! ”
    
      
      Thomas Reed, for plaintiff in error.
    1. The evidence of McMurran should not have been admitted ; it was but secondary evidence; the clerk of the probate court by law is the keeper of the records of the notary publics, and the clerk’s deposition of the loss, if real, should have been taken. H. & H. 434, § 36 ; Green. Ev. (ed. 1844); tit. Best Ev. § 94; Bullock v. Coon, 9 Cow. 30; 1 Cow. & Hill’s notes on Phil. Ev. 217.
    2. The witness should have been permitted to respond to the question as to the habits of the notary. It was rebutting evidence ; it was contended that Cook had refreshed his memory by the record; how could he refresh his memory by his record, if not made out at the time when the act was done 1 The fact sworn to was not written out at the time of its performance, and records can only be referred to, to refresh memories when that is done. 1 Cow. & Hill’s Notes on Phil. Ev. 289; Wood v. American Life Insurance Company, 7 How. 609; 2 Cow. & Hill’s Notes Phil. Ev. 728; Ibid. 509; Ibid. 766; 6 Serg. & Rawle, 324 ; 5 Watts R. 34; Green, on Ev. 539, § 461, 462; Ibid. 542, § 469 ; Jones v. Foley, 5 Mass. 101,
    This testimony was admissible as impeaching Cook’s deposition. 8 Wheat. R. 326: 19 Johns. R. 115, 122. '
    
      J. Hewett, for defendant in error.
    It appears in the record, that the counsel for the defendant in the court below had notice of the taking the deposition, in relation to which they sought to attack the credibility of the witness. Then, in a cross-examination, was the time to ascertain, by searching interrogatories, any improprieties in his mode of keeping his record. To the testimony of Vanhóesen, proving how much better situated the witness was, at the time of taking his deposition in 1843, to state facts accurately, than when giving his testimony in 1842, there was and could be no objection. Surely then, it was not irrelevant to show, as We did by J. I. McMurran, that at the date of the first, the book containing the record was lost, but had been found before the taking of the second, and therefore witness was again called on.
    
      As to the interrogatory propounded to Dr. Merrill, it is indefi-. nite and vague to a degree, that even if otherwise proper, its answer could have settled nothing; and courts will set their faces against any attempt to make a general rule or custom, vaguely pursued and sought for by vague interrogatories, the ground on which either a contract shall be established, or the credibility of a witness assailed. 20 Johns. R. 175. So also in 2 S. & M. 135,-the court evidently considered an inquiry into the custom of a notary in other cases than that at bar, as not relevant to the issue.
    The testimony of Mr. McMurran was not introduced to prove the loss of a notarial record, in order to let in secondary evidence to sustain the issue joined, but merely to rebut an inference attempted to be raised unfavorable to the witness. Had the first been the object of his testimony, there would have been something perhaps in the objection.
   Mr. Justice Clayton

delivered the opinion of the court.

This was an action of assumpsit, brought to charge the plaintiff in error, upon an indorsement made by her intestate. The evidence of demand and notice was contained in a deposition of the notary, in whose hands the note was placed. The defendant in the court below, then introduced another deposition of the same notary, given twelve months previous to the one read by the plaintiff, in which he gave a different and contradictory statement. The plaintiff below then proved that at the time the first deposition in the cause was taken, the notarial book of the witness was lost, and that he spoke from recollection alone ; but When the last was taken the, book had been found, and he had it before him to refresh his memory. U^ to this point the evidence upon both sides seems to have been unobjectionable. To rebut the other testimony, the defendant then introduced a witness, and asked him the question, whether he was acquainted with the general habit of the notary in keeping his notarial record, and whether he was not in the habit of leaving his memorandums of the notice of protest in blank, to be filled up after-wards. Upon the plaintiff’s objection, this testimony was excluded, and the case brought by bill of exceptions to this court.

We think this question falls within the rule laid down in the case of Wood v. American Life Insurance and Trust Company, 7 How. 609, in regard to the evidence of this same notary, and that the proof offered should have been received.

For the error in its exclusion, the judgment will be reversed, cause remanded and new trial awarded.

Mr. Justice Thacher, having been of counsel in the court below, gave no opinion.  