
    Elijah Cook vs. Joshua E. Martin.
    C. being sued in assumpsit, as a partner in an unincorporated banking company, upon a bill of exchange, alleged to have been signed by M. as the agent of the company, plead the general issue: held, that C. thereby admitted the existence of the firm, that he was a partner, and that M. was the agent of the partnership. '
    Where, under a statute providing that a commission to take the deposition of a non-resident witness, might issue, upon filing in the clerk’s office a copy of the interrogatories, and giving the opposite party notice thereof, ten days before the commission was to issue, interrogatories were filed, and the opposite party waived in writing the privilege of filing cross-interrogatories: held, that this waiver dispensed with the ten days’ notice, and a commission might properly issue forthwith.
    Where, in a commission and interrogatories to take the deposition of a witness, to prove that at the time of drawing the bill of exchange sued on, the drawer had no funds in the hands of the drawee, the bill of exchange was not described with minute accuracy, but omitted certain words written across its face, and the indorsement on the bill: held, that the date of the bill being properly given, and the object of the deposition not being to identify the bill, but to prove a fact existing at the time of its execution, the omission in the description of the bill was not material, and the deposition admissible.
    A want of funds in the hands of the drawee when a bill of exchange is drawn, dispenses with the necessity of notice to the drawer; and it is not necessary for the holder, in a suit against the drawer, to prove affirmatively that he sustained no damage by failure of notice, even though it is so averred in the declaration. From the fact of no assets, the law draws the conclusion of no damage sustained.
    Where a note is payable at a particular place, at a fixed time after date, on demand, it is not necessary to make a demand of payment at that place, before an action may be maintained against the maker.
    Whether, upon a note payable on demand, at a particular placej no fixed time being named, a suit can be maintained without a demand at such place. Query ?
    
    Where a note is payable at a particular time and place, and the maker was ready, at the time and place specified, to pay, on proof of that fact, he would be entitled to be exonerated from costs.
    In error, from the Hinds circuit court: before the Hon. John H. Rollins, judge.
    Joshua E. Martin, the defendant in error,
    sued Elijah Cook, the plaintiff, in the Hinds circuit court, as a copartner in the Real Estate Banking Company, of Hinds county, on certain notes made by that company, and on a draff drawn by them on the New York Banking Company. The notes are all precisely similar, except as .to dates, amounts, names of payees, &c. The following are copies of one of the notes, and of the draft:
    
      “ Clinton, March &th¡ 1839.
    “On demand, five months after date, the Real Estate Banking Company, of Hinds county, will pay one hundred dollars to J. F. Jack, or bearer, at their banking-house, in Clinton.
    • “ Cowles Mead, President.
    
    
      “ J. Davenpoet, Cashier.”
    “C. B. C. 804. Real Estate Banking Company,
    “ Clinton Missi. July 23d, 1839. No. 87.
    “ Cashier of the New York Banking Company, New York. Pay to the order o! G W. Gibbs, two hundred and seventy dollars, four months after 7- <.e, waiving acceptance.
    “Cowles Mead, President.”
    The declaration contained a special count on each, note, and ■" i and also the common count for money had and re-'■’•'id. The special counts are as follow: “For that said J- ’ ..dam, together with others, not sued in this action, co-pará' >-s, by their copartnership name of the Real Estate Banking Company of Hinds county, heretofore, to wit, on the 4th day of March, 1839, in said county, mad.e their certain promissory note, of that date, signed 'Cowles Mead, president,’ and countersigned ‘ J. Davenport, cashier,’ No. , and thereby, then and there promised, on demand, five months after date, to pay to J. F. Jack, or bearer, one hundred dollars, at their banking-house in Clinton, to wit, in said county, and then and there delivered said promissory note to said Jack, who, afterwards, and before the payment of the money therein specifiéd, to wit: on the day and year last aforesaid, at, to wit, in the county aforesaid, transferred and delivered said note to said plaintiff, ■who thereby, then and there, became, and still is the lawful holder and bearer thereof, and entitled to demand and receive payment of the same.”
    At the close of the special counts on the several notes, the declaration contains an averment of demand of payment of said notes at the banking-house of the said company at Clinton, and of non-payment.
    The special count on the draft was in these words: “And for that also, afterwards, to wit, on the 23d day of July, 1839, at Clinton, Miss., to wit, in said county, the said defendant, together with others, not sued in this action, copartners, in the name of the Real Estate Banking Company of Hinds county, by Cowles Mead, then their agent in that behalf, who uses the signature of Cowles Mead, President, made therein certain check or draft, bearing date the day and year last aforesaid, and then and there directed the said draft to a certain company, called the New York Banking Company, in New York, a place in the state of New York, and without the state of Mississippi, and thereby, then and there required the said New York Banking Company to pay to the order of G. W. Gibbs the sum of two hundred and seventy dollars, four months after the date of said draft, waiving acceptance thereof, and then and there delivered said draft to said Gibbs, who, afterwards, and before the payment of the sum of money therein specified, to wit: on the day and year last aforesaid, at, to wit, in the county aforesaid, indorsed said draft, by the'name of Geo. W. Gibbs, by which indorsement he then and there ordered and appointed the sum of money therein specified to be paid to the plaintiff, and then and there delivered the said draft, so indorsed, to said plaintiff, who thereby, then and there became, and still is the lawful holder thereof, and entitled to demand and receive payment of the same. And afterwards, to wit, on the 26th day of November, A. D. 1839, when said draft became due, according to the tenor and effect thereof, at the bank of said New York Banking Company, in New York aforesaid, to wit, in said county, the said draft was duly presented and shown to the teller of said New York Banking Company for payment, and payment thereof then and there demanded, according to the tenor and effect of said draft, but the said teller of said New York Banking Company did not, nor would, at the time when said draft was so presented and shown for payment, as aforesaid, or at any time before or since, pay the sum of money therein specified, or any part thereof, of all of which the said defendant, afterwards, to wit, on the day and year last aforesaid, to wit, in the county aforesaid, had notice. And the said plaintiff avers, that at the time of the making of said draft, and from thence until the time the same was so presented and shown for payment as aforesaid, said New York Banking Company had not in their hands, any effects of the said defendant, or of the said copartnership, of which he was and is a member as aforesaid, to wit, the Real Estate Banking Company of Hinds county, nor had the said New York Banking Company received any consideration from him or them, for the payment of said draft, nor has said defendant, or said Real Estate Banking Company, sustained any damage by reason of his or their not having had notice of the non-payment, as aforesaid, of said draft. Of all of which said several premises the said defendant, afterwards, to wit: on the day and year last aforesaid, at, to wit, in the county aforesaid, had notice; by means whereof the said defendant then and there became liable to pay to the said plaintiff the said sum of money in said draft specified, when requested, and being so liable the said defendant, in consideration thereof, afterwards, to wit: on the day and year last aforesaid, at, to wit: in the county aforesaid, undertook, and then and there promised said plaintiff, to pay him said sum of money in said draft specified, when thereunto requested.
    Then follows in the declaration the common count, and the breach, in usual form.
    The defendant, by his attorney, H. Stuart Foote, Esq., plead non assumpsit, in the usual form, without affidavit of its truth.
    
      At the trial, Amos R. Johnston, on behalf of the plaintiff below, proved that he had heard Cook, the defendant, state in conversation, that his connexion with the Real Estate Banking Company of Hinds county, had ruined him.
    He further testified that he iinderstood, from general report, and believed, that Cowles Mead was the president of that company; though he had never been present at any appointment of him; that he knew Cowles Mead’s handwriting, and that the signature to the draft sued on was in his handwriting. Upon which the court permitted the draft to be read to the jury, to which exception was taken.
    The deposition of William Anderson, a citizen of New Orleans, was then offered, taken under a commission a,nd interrogatories, issued on the 7th day of December, 1842. The interrogatories and notice were filed on the 6th of December, and were indorsed in these words : “A copy of the above interrogatories having been served on me, I waive the propounding of any on the part of defendant. December 6, 1842.
    H. StuaRt Foote.”
    The defendant objected to the reading of the deposition, because the commission under which it was taken issued within ten days from the date of service of the interrogatories; the court overruled the objection; the defendant then objected to the deposition, because the words “ original number eighty-seven; two hundred and seventy dollars, J. B. E. G. B. K.,” written across the face of the original draft, and the words “ Geo. W. Gibbs,” indorsed on the back, were not on the copy of the draft accompanying the interrogatories, with reference to which the witness testified. This objection was also overruled, and exceptions signed.
    The deposition was then read. The witness proved that he had no distinct recollection of the draft described in the interrogatories; he only knew that such drafts were drawn by the 'Real Estate Banking Company ; that he was in the employ of that company, in the capacity of teller, at the time the draft was drawn, and had been in that office for about a year before, and the same length of time afterwards; that the company had no funds in the hands of the drawees, to meet the drafts of the character sued on; they were expected to be provided for by negotiations, to be made by the cashier in New York, who did not succeed in making the expected arrangements, in consequence of which the drafts were protested.
    A motion was made in the court below to exclude the answer of this witness to the fourth interrogatory propounded to him, because his answer did not confine itself to the question asked. The interrogatory was this: “Had the Real Estate Banking Company any effects in the hands of the drawee when said draft was drawn, or had they any when said draft became due, or between its date and maturity?” The answer was that given above, that the company had no funds, but expected to provide them by negotiations, which failed. This objection was overruled.
    The defendant then objected to the whole deposition, because no evidence was given that the witness Anderson “was absent from, or resided out of this state at that‘time; or was dead, or by reason of age, sickness, or bodily infirmity, or any other cause whatsoever, was then unable to attend that court.” This objection met the same fate, and exceptions were taken.
    The handwriting of Mead and Davenport to each of the notes sued on,, was proved, and the defendant’s objections to their introduction overruled, and they were read to the jury; which was all the testimony in the case.
    The defendant asked the court to charge the jury, 1. The plaintiff in this action, under the declaration, is bound to prove that the defendant sustained no damage, by want of notice of non-payment of the bill of exchange in the declaration mentioned, and if the plaintiff has not made such proof to the satisfaction of the jury he is not entitled to recover on the draft.
    2. The plaintiff in this case is bound to prove demand at the banking-house in Clinton for payment of the notes sued on in this case, before he can maintain his action on the notes.
    3. In order to entitle the plaintiff to recover he must prove that Cowles Mead, by whom the notes and draft sued on were signed, was the authorized agent of the defendant to sign said notes and draft, at the time of the dates thereof. Which instructions were all refused by the court, and a bill of exceptions signed and enrolled, and a writ of error prosecuted.
    The following errors are assigned as existing in the action of the court below.
    1. In the admission as evidence to the jury of the draft, as set forth in the bill of exceptions.
    
      2. In admitting the deposition of William Anderson, and overruling the objection made thereto, because of the premature issuance of the commission to take the same.
    3. In not excluding the said deposition because of the omissions in the copy of said draft, as incorporated in the interrogatories.
    4. In not excluding the answer of said Anderson to the fourth interrogatory, because it was not responsive thereto, nor confined to the inquiry, and for other' reasons.
    5. For not rejecting the whole deposition for the want of proof at the trial that the deponent was at that time absent, or otherwise so circumstanced as that his testimony ore tenus could not be had.
    6. In not rej'eeting the notes offered in evidence to support counts in the declaration.
    
      7. In refusing to give the first charge to the jury, as moved for by the said Elijah’s counsel, as stated in the bill of exceptions.
    8. In refusing to give the second charge, moved for by him, as therein also stated.
    9. In refusing to give the third charge moved by him, as also therein set forth.
    10. Because in each count of the plaintiff’s declaration on a note of the Real Estate Banking Company of Hinds county, there is no cause of action; the notes respectively being payable on demand at the counting room of the said company at Clinton, and there being no averment of demand of payment thereof there prior to this suit; and.because there was no admissible evidence to support the recovery on the last count.
    
      11. Because there was no evidence of any such demand on either or any of said notes.
    12. Because there is no cause of action in any of the special counts.
    
      Foote, Hutchinson, and Russell, for plaintiff in error.
    1. 6, 9. Errors considered together —being the motions to exclude the notes and draft — and the motion for instruction that without proof that Mead was the authorized agent of the company, the plaintiff could not recover.
    At common law, the partnership alleged, as well as agency of Mead should have been proved. Our act, H. & H. 695, act 36, did not embrace the character of Mead as agent.
    2. Premature issuance of commission to take Anderson’s deposition. H. & H. 602, § 16.
    3. Deposition ought to have been excluded because the draft pretended to be copied in the interrogatories was not the same, but different.
    4. Not sustainable.
    5. Not shown at trial that Anderson, whose deposition was offered, was absent, &c. H. & H. 603, § 18.
    7. No proof of absence of injury to defendant for want of notice. It was proved that when the draft was drawn, there was a reasonable expectation of funds being in the drawee’s hands; so there should have been counteracting proof — else notice was necessary. French v. Bank of Columbia, 2 Cond. R. 58. A reasonable expectation of funds entitles drawer to notice.
    8, 10, 11. These exceptions, and the errors assigned on them, all amount to this, that demand of payment of the notes at the counting house of the bank was necessary, and being omitted, the refusal to charge that it was necessary, &c. is error. When a note is payable on demand, at a particular place, there is no cause of action until demand is made at that place. Wallace v. Me Connel, 13 Peters, 147.
    
      Sloan, for defendant in error.
    1. The 1st, 6th and 7th errors assigned are in effect the same, and are substantially this, that the court below erred in not rejecting the several notes and draft offered in evidence under the several counts in the declaration. The statute of 1836 (see How. & Hutch. Dig. 595, sec. 30,) provides, “ that in all suits founded on promises, agreements, or contracts, in writing, made by two or more persons, as copartners, and signed by any one or more of them, or by any person as agent in their behalf, whether the several names of such copartners be signed at length or abbreviated, or whether the name of any firm be used at length or abbreviated, it shall be lawful and sufficient to declare, or complain against any one or more of them, either severally or as copartners, alleging the liability of him or them each to arise by his or their promise, agreement, or contract in writing, signed or executed by such signature as the writing in fact imports : ” “ and to sustain such averments of liability,” the statute further provides that it shall only be necessary to exhibit in evidence, the written agreement, promise, &c. executed in the manner averred. In the face of the notes exhibited in evidence, the Real Estate Banking Company of Hinds county are the promisors; the plaintiff in error is alleged to be a member of that company, and liable as such. The plea of the defendant was not sworn to. The notes offered in evidence were therefore, under the special counts at least, sufficient evidence of the liability of the defendant below, without proof, of his membership, aliunde, or of the signature or agency of Mead. The same rule of pleading and evidence, established by the statute referred to, will apply to the draft offered in evidence under the special count. The signatures of Mead and Davenport to the notes, and the signature of the former to the draft, are proven to be genuine by the testimony of Johnston: the testimony of Anderson in reference to the draft in conjunction with the statements of Johnston, establish sufficiently, I conceive, the agency of Mead, and therefore submit that the declaration is sustained as to the common count. The liability also of Cook as a copart-ner, is sustained by the testimony of Johnston.
    2.- .The 3d and 5th errors assigned, go to the admission of Anderson’s deposition; the 4th to the admission of his answer to the 4th interrogatory. The object of copying the draft in the interrogatories, it will be seen, was to call the attention of the deponent to its date and time of maturity. The copy was complete for that purpose. In reference to the answer of Anderson to the 4th question, I deem the objection made too frivolous to merit a reply. The statute of 1837 (see Laws of Mississippi, 760,) provides, that commissions to take the depositions of witnesses residing out of this state, may issue without an affidavit of the non-residence or materiality of such witness. Provided, interrogatories be filed, and a copy be served on the opposite party or his attorney, &c. Anderson was a non-resident witness, and I conceive that the provisions of the law have been substantially complied with. The object of filing interrogatories, and serving the opposite party or his counsel, with a copy ten days at least before the issuance of the commission, is obviously to- afford an opportunity of filing cross-interrogatories, which the opposite party has,a right to do. An express waiver of that right, however, is certainly a waiver of everything necessary to a consummation of that right. The attorney of Cook was served with a copy of the interrogatories filed, who expressly waived the propounding of any on behalf of said Cook; the commission issued on the day following, any further delay being useless.
    The second objection made to the admissibility of the deposition in evidence, applies only to depositions taken de bene esse, because the witness may, at the time of trial, be within the reach of process, and able to appear in court. But, in the case of a non-resident witness, the presumption is, that he continues to reside beyond the limits of the state. Besides, the deposition here in question was taken in the city of New Orleans, on the 15th of December, and was read in evidence on the 9th of January following, and therefore, furnished of itself as conclusive evidence of the continued absence of the witness, as any that could possibly be adduced.
    3d. In Bickerdike v. Ballman, 1 Term R. 405, it was held, that where the drawer had no effects in the hands of the drawee at the time of drawing the bill, nor at its-maturity or any .intermediate period, notice of non-payment was not necessary to fix the liability of the drawer. The same rule was adhered to in Rogers v. Stephens, 2 Term R. 713; Hoffman v. Smith, 1 Cains, 157, and numerous other cases. See also Bailey on Bills, 302. I admit that the application of the rule has been somewhat restricted, 'as in Rucker v. Hiller, 2 Camp. 217; 16 East, 43; 3 Camp. 334: 20 John. R. 146 ; 2 Nott & McCord, 257, where it is held, that when the drawer has a bona fide reasonable expectation of having effects in the hands of the drawee, or when he has some funds, though limited in amount, and there is a fluctuating balance between him and the drawer, there demand and notice will be necessary. Such bona fide reasonable expectation can only be based on active steps taken by the drawer himself, to place funds in the drawee’s hands, without a knowledge of failure, as where he has shipped goods to meet the draft and they are on the way, but no bills of lading had' been remitted. Here, however, the drawers had no such reason to believe they had effects in the hands of the New York Banking Company ; on the contrary, they relied only on negotiations to be made through their own cashier, with said company. The cashier of course knew he had failed in arranging for the payment of the draft, and notice to him was notice to the drawers. Besides, it is not pretended that funds of any kind had been transmitted by the drawers.
    4th. The declaration, it is true, contains an averment of a demand of payment of the notes suéd on previous to the commencement of the action ; this I contend was impertinent, and proof of the averment was unnecessary.
    To entitle the holder to sue the maker of a note payable on a particular day, and at a particular place, no demand of payment is necessary. Bailey on Bills, 203; Nichols v. Bowes, 2 Camp. N. P. 498; Lyon v. Sundius, 1 Camp. N. P. R. 423; 3 Esp. Cas. 246; Fenton v. Goundy, 13 East R. 459; Ruggles v. Potter, 8 Mass. R. 4S0; 4 J. R. 183; 17 J. R. 248 ; 8 Cow. R. 271. In Haxtun v. Bishop, 3' Wend. 21, Chief Justice Spencer held that, in an action on a note payable on demand, and at a particular place, no averment or proof of demand was necessary. This is his language. “In relation to promissory notes, it is well settled that in an action on a note payable on demand, generally no demand need be proved; the commencement of the suit is a demand. So also in an action on a note payable at a particular place, on a particular day, it is not necessary to aver or prove a demand at the time and place ; but the readiness of the defendant is a matter of defence. It seems to follow, that in an action on a note payable on demand, at a particular place, no demand need be averred or proved; but if the defendant pleads that when the demand was made, that is when the suit was commenced, he was ready at the place mentioned in the note to make payment, and brings the money into court, he discharges himself from the interest and costs.”
    But these notes were not payable on demand. A bill or note payable on demand, is payable immediately upon presentment. Bailey on Bills, 221. No days of grace are allowed on a note payable on demand, but a suit may be brought against the maker on the very day it is given without previous demand. Bailey on Bills, 234; Cummer v. Harrison, 2 McCord, 246. Another incident peculiar to a note payable on demand, is this, the statute of limitation begins to run from its date. Bailey on Bills, 26; 4 Yernon R. 458. A post note has none of the characteristics of a note payable on demand. The notes here sued on were post notes, payable at a future day. I therefore confidently insist, that the averment of demand of payment at the banking house of the copartnership in Clinton, contained in the declaration, was an .impertinent averment, and according to the rule recognized in Thrasher v. Ely, 2 S. & M. 150, it was not necessary on the trial to prove the truth of that averment.
   Mr. Chief Justice Si-iaRkey

delivered the opinion of the court.

Martin commenced this suit by attachment against Cook as a partner of the Real Estate Banking Company of Hinds county, and declared on a bill of exchange on the New York Banking Company, in the city of New York, and also on divers promissory notes, signed by Cowles Meade, as the president of the company. Cook replevied the property attached, and pleaded non-assumpsit, and a verdict was rendered against him. He took his bill of exceptions during the progress of the trial, and now seeks a reversal of the judgment. The assignment of errors contains twelve distinct specifications or causes for reversing the judgment, from which we shall endeavor to extract and condense the questions presented, without regarding in detail each special cause assigned.

An objection was taken to the admissibility of the bill of exchange as evidence. Cook was declared against as a partner, and the instruments described as having been signed by Meade as the agent of the firm. The statute provides that any one of several partners may be sued separately, and that he can only deny the partnership by plea supported by affidavit. In the same way he must deny the execution of the instrument sued on, whether it be signed by himself or by another person for him. By pleading the general issue then, Cook admitted the existence of the firm; that he was a partner, and that Meade was the agent. H. & H. Dig. 594, 595. Ellis' Adm'r v. The Planters Bank, 7 Howard, 235.

The deposition of -Anderson, a witness residing in New Orleans, was introduced by the plaintiff below, and objected to. The objection is, that the commission issued prior to the expiration of the ten days required by the statute, after filing the interrogatories in the clerk’s office. To obviate this objection, the plaintiff introduced the agreement of the defendant’s counsel, waiving the privilege of filing cross-interrogatories. The statute provides that any party to a suit desiring to take the deposition of a witness residing out of the state, may do so on affidavit of his materiality, and by filing in the clerk’s office a copy of the interrogatories, at least ten days before the commission is to issue, giving at the same time notice to the opposite party. The notice is required to enable the opposite party to file cross-interrogatories, and by waiving this privilege, the party himself dispensed with the provision which the law had made in his favor. A waiver of the privilege of doing the thing, necessarily embraced a waiver of the time, in which, by law, it was to be done. This objection to the deposition was properly overruled.

Another objection to the deposition was, that it did not contain an exact copy of the draft in this, that the draft introduced in evidence had certain words written across its face, which were omitted in the copy contained in the interrogatories. If the object'of the deposition had been to prove the identity of the draft, this objection might be entitled to some weight, provided those words could be regarded as constituting a descriptive part of the bill. But the object seems to have been to prove that the drawers had no funds in the hands of the drawees. The date of the bill then was all that was necessary, to direct the attention of the witness to the fact, of whether funds had been provided to meet it. The witness does not pretend to identify the bill; on the contrary, he says he has no recollection of it, but knows that such drafts were drawn by the company. A circumstance then, so immaterial, cannot vitiate the deposition.

After the evidence was closed, the defendant’s counsel requested the court to charge the jury, that the plaintiff was bound to prove that the defendant sustained no damage for the want of notice of non-payment, and in the absence of such proof they were bound to find for defendant. The declaration contains an averment of notice, and also an averment that the drawers had no funds in the hands of the drawees, from the date of the bill until it matured, and that defendant consequently sustained no damage for want of notice. If the drawer had no funds or effects in the hands of the drawee, from the time the bill was drawn until its maturity, and had no just ground to expect that it would be honored, then he is not entitled to notice of dishonor. This exception to the general rule, proceeds upon the ground that it was an act of fraud, under the circumstances, to draw. But if the drawee was indebted to the drawer, or the drawer had made consignments to him, or if the want of notice from other causes would produce detriment to the drawer, then he is entitled to notice. 3 Kent, 110. But it was not incumbent on the plaintiff, in the language of the charge asked, to prove that the defendant had sustained no damage. Indeed, such proof would have been inadmissible. 4 Phil. Ev. 29. It was sufficient for the plaintiff to prove the fact of no assets; the law draws the conclusion. And when the plaintiff proved that the defendant had no funds or assets in the hands of the drawer from the time of drawing the bill until its maturity, he had made out a prima facie case, and if circumstances existed which were sufficient to remove the exception to the general rule, and to entitle him to notice, it was incumbent on him to prove them. Chitty on Bills, 258.

In the next place, the court was asked to instruct the jury, that the plaintiff must prove a demand of payment of the notes at the banking house of the company in Clinton, where they were made payable. By a well-settled train of American adjudications, it is not necessary to prove presentment of a note at the place of payment. It is matter of defence for the defendant to prove that he was ready at the time and place. 3 Kent’s Com. 97, 98. A distinction has been taken between notes payable at a particular time, and those payable on demand. It has been held, that, as- regards notes of the latter description, the demand must be averred and proved. 8 Cowen, 271. These notes, or a part of them at least, are payable on demand five months after date, and can only be regarded as notes payable at a particular time. They were due at the expiration of five months, and demand at the place of payment was not necessary. If the defendant was ready at the time and place to pay, he was entitled to be exonerated from costs, on proof of that fact.

The judgment must be affirmed.  