
    JANUARY TERM, 1844.
    James Bland, et al. v. The Commercial and Railroad Bank of Vicksburg, use of William R. Bay.
    It is incumbent on the holder of an indorsed note, before he can charge the in-dorser, to prove demand and notice with a reasonable degree of certainty. Positive proof is never absolutely required.
    Where the notary who protested the note was dead, and a witness testified that at the request of the said notary, about the time the note sued on fell due, he gave personal notice to the indorser of the non-payment of some nóte, the precise date and amount of which he could not recollect, made and indorsed by the same persons with the note sued on ; hold, with evidence of a proper demand, to be sufficient proof to uphold the finding of a jury that the indorser was liable upon the note sued on.
    In error, from the Circuit Court of Warren county.
    Thi was an action of assumpsit, in the ordinary form, brought by th'e President, Directors and Company of the Commercial and Railroad Bank of Vicksburg, who sued for the use of William R. Bay, upon a note made by James Bland, payable to, and indorsed by William B. Pryor and by Levi Mitchell, dated the 12th day of February, A. D. 1838, payable six months after date, for the sum of thirteen hundred and fifty-six dollars and sixteen cents, at the Commercial and Railroad Bank of Vicksburg.
    The suit was brought under the act of 1837, against all the parties to the note, who were duly served with process, and appeared, and plead non assumpsit. A trial was subsequently had, at which it appeared in proof by the testimony of E. S. Fisher, that E. H. Maxcy, a notary public, whose protest of the note sued on was attached to the note, was dead ; that the protest was filled up in the handwriting of the witness, and signed by the said notary ; that the copy of the note, which was attached to the protest, which copy was indorsed on the protest, was in the handwriting of the witness', and made by him at the time of the protest; that before signing protests filled up by his clerks, said Maxcy was in the habit of examining them, to see if they were right. The plaintiff then offered to read said protest, to which the defendants objected, but the Court permitted the protest and copy to be read to the jury ; to which exceptions were taken.
    The same witness proved, that about the middle of August, 1838, he was requested by said Maxcy, to deliver some'notices of protest for him, said Maxcy being then sick; that he (witness) delivered a notice of protest to the indorser, Levi Mitchell in person, and left one for the indorser, William B. Pryor, at his residence ; that he did not remember the amount or date of the note referred to in said notice, but he was impressed with the belief that the note referred to was made by James Bland, but could not remember whether or no it was the note sued on ; that the notices of protest delivered by him, were delivered on the same day of the protest of the particular note recited in the notices. The plaintiff further proved, by Isaac G. Bibby, that the note sued on was in the Commercial and Railroad Bank of Vicksburg during the whole day of its maturity and protest.
    Upon this evidence the defendants asked the Court to instruct the jury,
    1. That to entitle-the plaintiff to recover against the indorsers, he must prove that the note was presented at the place of payment, on the third day of grace, and notice of the refusal of payment, and that the holder looked to them for payment, was given on the day of protest or the day after to the indorsers.
    2. That the note must be so described in the notice as to identify it.
    Which instructions the Court gave ; and at the request of the plaintiff’s counsel, gave the following instructions to the jury. That the jury must be satisfied from all the circumstances in the case, and that positive testimony was not necessary to prove that the notices were given or demand made on the third day of grace ; to which charge defendants then and there excepted before the jury left the box. The jury found for the plaintiff; and the defendants below moved for a new trial, because the verdict of the jury was contrary to the law and the evidence. The motion was overruled, and exceptions signed and sealed.
    
      Guión and Prentiss appeared for the plaintiffs in error, and assigned the following causes for error.
    
      • 1. The Court below erred in permitting the protest to be read as evidence of demand of payment of the note.
    2. In giving the jury the charge asked for by the plaintiff.
    3. In not granting the defendants a new trial.
    
      Harrison and Holt, for defendants in error.
    This writ of error is prosecuted for the purpose of reversing a judgment rendered in the Warren Circuit Court, against the indors-ers of a promissory note, of which James Bland was drawer. ■ Exceptions are taken to the instructions given to the jury, at the instance of plaintiffs, and to the refusal of the Court to grant a new trial.
    It having been proved by Mr. Bibby that the note sued on was in the bank, where it was made payable, during the whole of the day on which it matured, the requirement of the law, in regard to the demand necessary to charge the indorsers, was fully complied with.
    The only question which remained in the case was, whether the proof of notice to the indorsers was sufficient to warrant the jury in finding a verdict against them.
    The Court, on the application of plaintiffs in error, gave in charge to the jury the settled law upon this point, and there is no controversy in regard to it. But the Court also, on motion of defendants in error, charged the jury that they must be satisfied from all the circumstances in the case, and that positive testimony was not necessary to prove that the notices were given or demand made on the third day of grace. This charge was the subject of exception on the part of plaintiffs in error. That it was pertinent to the case, and announced a well established legal principle, cannot admit of a doubt. With the exception of th'e crime of treason, there is not an offence in the whole calendar of human guilt, of which the citizen may not be convicted on circumstantial evidence. If he may lose his life and liberty upon testimony not positive, a fortiori, may he incur a common civil responsibility on this species of proof. In practice, we know the proof of demand and notice is rarely positive ; the notary usually deposing from memoranda, and fixed habits of business, without any recollection of the particular bill or note sued on, which is, nevertheless, always held to be sufficient.
    
      But it is urged that the testimony did not authorize a verdict against the indorsers, and that the Court erred in refusing them a new trial. The verdict was not against law, if the facts supported it, and the Court could not disturb it, on the ground that it was against the weight of evidence, unless it was overwhelmingly so. This doctrine is as ancient and wide-spread as the Common Law itself, and lies at the very foundation of the trial’ by jury. Mr. Fisher (whose statement was the only evidence adduced upon the point of notice) deposed, that about the middle of August, 1838, Maxcy, the notary, who protested this note, being sick, requested him to serve some notices for him. That he did, about that time, serve notices on Levi Mitchell and W. B. Pryor (two of plaintiffs in error), of the dishonor of a note, which he believes was drawn by James Bland, and indorsed by said parties. He served the notices on the day the note was protested, and in the manner, it is admitted, required by law. He could not recollect or state, whether the note sued on in this action was the one of which he gave notice of the protest or not. If it was the same note, the liability of the indorsers was unquestionably fixed. The question being thus one purely of identity, we must, in solving it, examine how far the note sued on corresponds with that described by the witness. It fell due on 15th August, 1838 ; that of which witness speaks, matured about the middle of August, 1838 ; it was drawn by James Bland, and indorsed by L. Mitchell and W. B. Pryor ; so was the note spoken of by the witness. And to show still further, the witness’s connection with the note sued on, we find that the protest and copy of the note thereto attached, are all in his handwriting. Could all these circumstances concur, and the notes be different ? It is scarcely possible. At all events, is not the inference strong in favor of the identity of the notes, and one in which the jury had a right to indulge ? But not only had the jury a right to presume that the notes were the same, from the testimony before them, but from that which was not before them. It is a principle in the law of evidence, founded upon a thorough knowledge of human character, that wherever a party to a suit has it in his power to produce a particular piece of testimony in his favor, if it exists, and fails to produce it, the presumption is that such testimony does not exist. If there was, or bad been in existence, another note besides that sued on, maturing about the middle of August, 1838, drawn by James Bland, and indorsed by Pryor and Mitchell, how easy would it have been for plaintiffs in error to have shown it. It was a fact, if it had existed at all, resting in their knowledge, and upon its very nature susceptible of proof. It was their interest to have shown it, because they would thereby have rendered it doubtful whether the note spoken of by the witness was the same with that sued on, and would have defeated a recovery against themselves. Yet, they neither showed nor offered to show the existence of any such other note ; a' circumstance from which the jury had a right to feel strengthened in the inference which the evidence of Fisher warranted, that, the notes were the same.' And, when on the motion for a new trial, they still failed to adduce any evidence of the existence of such other note, the Court doubtless felt the inference of the jury to be doubly fortified by the conduct of the parties.
    We believe the weight of testimony is clearly in favor of the verdict, but this, we are not bound to show. The testimony may be in equipoise; it may even, in the estimation of the Court, preponderate against the verdict; yet, unless this preponderance is overwhelming, such as would make it manifest that the jury must have acted under the influence of passion or gross mistake, their verdict cannot, according to the highest authorities, be set aside.
   Per Curiam.

The note on which this suit was founded was dated 12th of February, 1838, payable in six months ; and to fix the liability of the indorsers, the plaintiff proved by the clerk of the notary, that the body of the protest was filled up by him and signed by the notary. That about the middle of August, 1838, at the request of the notary, he left a notice for Mitchell, at his room, and also placed one in the post-office for him ; and on the same day he left a notice for Pryor at his residence. He did not remember the amount or date of the note referred to in the notices, but was impressed with a belief that it was a note made by James Bland, and indorsed by Pryor and Mitchell. The notices were delivered on the day the note was protested. To establish demand, the plaintiffs proved by I. G. Bibby, that the note was in the Commercial and Railroad Bank, where it was payable, during the whole day of its maturity and protest. The copy of the nóte on the back of the protest was made out in the handwriting of the witness, and corresponds with the note on which suit was brought, and the protest was made on the 15th of August, and the notary who made the protest is since dead. At the request of the plaintiff’s counsel, the Court charged the jury that they must be satisfied from all the circumstances in the case that notice was given ; that positive proof was not necessary ; to which charge the defendants excepted.

It is incumbent on the plaintiff to prove notice to the indorser ; and it has been held, that proof from which notice may be inferred, will not do ; but in no case has the rule been laid down so rigidly as to require positive proof. It certainly should be proved, however, with at least a reasonable degree of certainty, and mere circumstantial evidence may be insufficient; but in this instance there is scarcely room for a doubt. The only possible defect in the evidence is, that the clerk did not certainly know that the notices which he delivered related to the note sued on, and yet every circumstance tends to show that the notices had reference to this note, and to no other. We think the instruction of the Court was right, and that the evidence fully sustains the verdict.

Judgment affirmed.  