
    Wilbur, survivor of Doremus, against Selden, impleaded with Richards, survivors of Ogden.
    
    UTICA,
    Aug. 1826.
    Assumpsit by the plaintiff, an endorsee, against the defendants, endorsers of a promissory note. 4The declara-^ou stated that the note was for $800, payable to Canfield & Co. ; by them endorsed to the defendants; by them to Doremus ⅜ Wilbur, (the latter of whom, as survivor of Doremus, is the plaintiff;) by them to Bostwick & Sterling; and by them to the Bank of New-York. It then averrC(i a demand of the makers, and notice of non-pay-7 * J ment to all the endorsers, and a payment by the endorsers respectively, who were subsequent to the defendants,
    The cause was tried at the New-York circuit, March 30th, 1824, before Edwards, C. Judge; when, after proving the note paid ai d taken up as averred, ⅝ one question was, whether demand of payment had been made, and notice §iven t0 the defendants.
    To prove this, the notarial register of John Wilkes, the n°ta!T of the bank, was offered in evidence by the plaintiffs. All the entries in this book, were in the hand writing of one Scott, Wilkes' clerk, who transacted his business> an^ who had left the city of New-York, declaring that he was going to the back parts of Pennsylvania, and could not be found on diligent inquiry. The register was rejected by the judge, J °
    
    
      . . The plaintiff then offered to prove what Scott had sworn to on °f an action before brought by Doremus ⅜ Wilbur against Selden, Richards and Ogden, to recover the sums which the former had paid to the holders of the note in question, in satisfaction of their liability as endors- . ers, and one of which sums was the amount now claimed, This evidence was objected to, but admitted by the judge.
    
      ofVpromisso-íie dicTno't hold' the note when due; yet'miist* in an action or endorser, for the money páid by him, (the intérneer)^ asnbse-quent endor-thenote,"prove mand ⅛1' ment and no»tAC the same as in an tiou agmnstau endorser. An interme-rlinfo prwlArsnr
    The register of a deceased cvidence* n°f demand and promissory ⅛ note, where the entries were made by i”S stiH^alive° though he be jurisd'iction4 of the court, and cannot be found on diligent enquiry.
    What one swore on a former trial cannot be given in evidence unless he tie dead. That he is beyond reach of process of subpoena, and cannot be found on diligent enquiry, will not render such proof admissible.
    To render what a witness swore on a former trial admissible, it must have been between the same parties, and the point in issue the same.
    _ The words of the witness must be given; not what is supposed to be the substance of his testimony.
    
      
      H. D. Sedgwick, one of the counsel in the former cause, was then sworn for the plaintiff; and said he could not state with precision what Scott swore to, and could not recollect the phraseology of the witness. His testimony was therefore objected to ; but the judge allowed him to state his recollection of the substance of what Scott swore to; and he produced his notes of Scott's testimony ; but did not pretend that they contained Scott's exact words or phraseology.
    The defendant excepted upon the above points; and the verdict being for the plaintiff, he now moved for a new trial.
    
      G. Griffin, for the defendant.
    The testimony of Mr. Sedgwick should not have been received. The former trial was not between the same parties, or for the same cause of action ; and it did not appear that Scott was dead. Nor could Mr. Sedgwick repeat the words or phraseology of Scott. (1 Phil. Ev. last Am. ed. 199, 200, and note. 17 John. 179. Lc Baron v. Crombie, 14 Mass. Rep. 234. Bull. N. P. 243. 4 T. R. 290, per Ld. Kenyon, C. J. Lightner v. Wike, 4 Serg. & Rawle's Rep. 203.)
    
      R. Sedgtoick and H. D. Sedgwick, contra,
    denied that the plaintiff, being a subsequent endorser, and holding the note when it fell due, was bound to show a regular demand of payment and notice to a prior endorser. They said the most that can be required is, that he should shew notice to the party he means to charge, of having actually paid and taken up the note, within a reasonable time after so doing. In this case, the plaintiff seeking to recover only what he has paid, no notice whatever was necessary.
    [They were proceeding to argue in support of these propositions ; but the Court told them, the law was so well settled against them, that they could not sit to hear ibe argument.1
    
      In Support of the proposition that the evidence of what Scott had sworn, was admissible, especially in connexion with the record made by him in the notarial register, they cited Sluby v. Charriplin, (4 John. Rep. 461;) Cooky. Woodrow, (5 Cranch, 13;) Clark v. Sanderson, (3 Bin-Rep. 192;) Jackson y. Gager, (5 Cowen’s Rep. 383;) Welch v. Barrett, (15 Mass. Rep. 380;) Hallidayy. Martinet, (20 John. Rep. 168;) and Mayor of Doncaster y. Day, (3 Taunt. 261.)
   Curia, per

Savage, Ch. Justice.

The only question is, as to the competency of the testimony objected to.

The books of a deceased notary have been received in evidence, when the entries were made by the notary himself; but when they are made by a clerk, the hotary does not attest to them; and in that case the evidence of the clerk is higher. And indeed the book, unaccompanied by his testimony, would prove nothing. (20 John. 172-3, and the cases there cited )

The rule as to admitting what a witness swore upon a former trial, is supposed to be this : That to render such testimony admissible, it must be between the same parties, and the point in issue the same ; and the words Of the witness must be given, not what is supposed to be the substance of his testimony. The witness must also be dead. (1 Phil. Ev. 215. Bull. N. P. 243. 4 T. R. 290. 14 Mass. Rep. 234. 4 Serg. & Rawle's Rep. 203.)

In this case, the parties are substantially the same ; the cause of action is the same, and the point in issue the same. But the witness, Scott, is not dead. He is absent, in the state of Pennsylvania; and, possibly, upon inquiry there, he may be found, and examined upon commission.

It is urged by the plaintiff's counsel that the case is analogous to one of a subscribing witness to a bond, whose signature may be proved, if he be absent; and the proof of which establishes the execution of the bond, without prool of the signature of the obligor. That rule rests upon the presumption that the parties have selected 'the witness to testify to the execution ; and, therefore, proof of his signature, is proof that the bond was executed in his presence. The rule is certainly a very dangerous one ; but too well established to be now controverted. (5 Cranch, 13. 3 Bin. 192. A John. 467.) It is hoi, however, at all analogous in principle to the one contended for in this case. No special confidence can be charged upon the defendants. They could not control the bank in the selection of its notary ; nor the notary in the selection of his clerks. The witness, Scott, was never selected by the parties to testify between them; nor was he called to testify to their acts, but his own.

In Le Baron v. Crombie, (14 Mass. Rep. 36,) the supreme court of Massachusetts refused to hear what had been sworn to by a witness who, though naturally alive, was civilly dead, having been cohvicted of felony. They say the rule in England is limited to the case where the principal witness is dead. If, however, the death of the witness were not an indispensable circumstance, there is yet another difficulty. Mr. Sedgwick could not state the words of the absent witness; but only the substance of his testimony. He produced the notes which he took as counsel on the former trial; but whether he testified from these or from recollection, does not appear in the case. The rule laid down by Lord Kenyon, (4 T. R. 290,) is, that the words must be given, and not the effect of them ; and the reason is, because the jury are to judge of the effect of the testimony, and not the witness. In Lightner v. Wike, (4 Serg. & Rawle's Rep. 203,) chief justice Tilghman shews, very satisfactorily, the reason of the rule; and also that notes of counsel should not be relied on, as it is not their practice to take the words, but the substance, as they understand it. And he remarks, that during a trial, the ideas of counsel pass through a medium which diverts them from a right line.

The case of Doncaster v. Day, (3 Taunt. 261,) does not contradict the rule, that the words must be given; but holds that they may be given from notes or memory, provided the accuracy be sworn to.

I am of opinion that this evidence was improperly admitted, and that a new trial should be granted.

New trial granted.  