
    JANUARY TERM, 1843.
    James J. Rowan and Lydia Dowell vs. John Odenheimer and James Tennent.
    Where the deposition of a witness residing in the county in which the trial takes place, was taken de bene esse ; and it was proven that he had been duly served with subpcena to attend the trial, but at the time of. trial was absent from the state, without the consent or procurement of the plaintiffs ; held, that the steps taken were sufficient to authorize the reading of the deposition.
    A notice of, protest of a note, which describes the note protested, as being of one dollar less in amount than the one offered in evidence, but in other particulars identifying them, is sufficient to uphold a finding of the jury, against the indorser predicated on such notice.
    Where, in an action upon a note for $641 40, payable at the Bank of N., dated 24th April, 1840, due January 1, 1841, made by ^^and indorsed by D., a notary testified that he demanded payment of a note of $642 40, made by R. and indorsed by D., payable at the Bank of N., dated 24th of April, 1840, and due January 1, 1841, on the day of its maturity, at the bank where it was payable, of the teller, about the close of the banking hours ; and upon failure of payment, gave notice thereof to the indorser on the next day by ten o’clock, at her store, in the city where the note was protested; but could not state at what precise hour he left the notice at the store, nor with whom ; that he had a record of his notarial action made out by his clerk, who might also have written the notice of protest, as he had no recollection of it, nor of having ever compared it with the note protested; that his notarial record was signed by himself, though filled out by his clerk, who was in the habit, when the witness returned from serving notices, of writing down what he had done, when the witness would sign it; that his statement, that he had served the notice of protest before ten o’clock, was not made from his present recollection, but based upon his usual practice : Held, that the testimony was sufficient to uphold a verdict against the indorser D., upon the note sued on.
    Whether notice of protest, barely sufficient in its description to put the indorser upon inquiry, be sufficient to render him liable ? Query ?
    
    Whether a notice of protest, describing the note sufficiently in other respects but stating that the demand was made upon the wrong day, be sufficient to bind an indorser 1 Query ?
    
    
      In error, from the Adams circuit court.
    John Odenheimer and James Tennent, sued James J. Rowan and Lydia Dowell, in the circuit court of Adams county, upon a note of which the following is a copy; viz.
    $642 40. Natchez, April 24, 1840.
    On or before the first day of January, eighteen hundred and forty-one, I promise to pay to Lydia Dowell, or order, the sum of six hundred and forty-one dollars and forty cents, without defalcation, for value received, negotiable and payable at the Commercial Bank of Natchez.
    Jas. J. Rowan.
    Indorsed L. Dowell.
    Upon the trial the plaintiffs offered to read the deposition of James It. Cook, taken to be read de bene esse. It was proved by the plaintiffs that Cook was a resident of the county of Adams, but absent at that time; that he had been duly summoned as a witness in the case, to attend at that term of the court, but had left Natchez a few days before the commencement of the term, and was then in the city of New Orleans, out of this state; upon which the defendant introduced a witness, who testified that Cook had stated that he had left the county of Adams for the express purpose of avoiding being examined as a witness in any case where he was required or summoned to give evidence as to his notarial acts before the court, and that he intended to return as soon as the court should be over; but that Cook was not absent through the instrumentality of the plaintiffs or with their knowledge; the defendants then objected to the deposition of Cook being read ; the objection, however, was overruled and the deposition read.
    Cook proved that on the 4th day of January, 1841, he had in his possession a note of which .he annexed a copy to his deposition ; which was in all respects similar to the one above set out, except that it was for six hundred and forty-two dollars, in the body of it; and on that day he had, at the request of H. D. Mande-ville, presented the note for payment at the Commercial Bank of Natchez, about the closing of the bank, to Mr. Fuller, the teller, who refused to pay it; whereupon he protested it, and gave Lydia Dowell notice, in the usual form, of the protest of the note, and that the holder looked to her for payment, by leaving the notice at her store in the city of Natchez, on the day next succeeding the protest, by ten o'clock in the morning; that the notic'e was printed, with blanks filled up in writing, describing the note; that he could not say at what hour he delivered the notice, nor with whom he left it; it was left at the store; that he had preserved a copy of his proceedings in delivering the notices and that the record was then in his possession; that Mr. Connelly wrote out the record and the copy of the note attached to his deposition; that the notice left for Miss Dowell might have been in the hand-writing of Connelly; the witness had no recollection about it; nor did he recollect that he had ever compared the notice left for Miss Dowell at her store, with the note protested and sued on ; that the record made out by Copnelly was signed by witness in his own hand; that generally after he had served notices, his clerk made the memorandum of the manner in which the notices were served and, then he signed them; that the statement that he had served the notice before 10 o'clock upon Miss Dowell, was not made from recollection that he then had upon the subject, but that it was his usual practice to give notices before that hour.
    This was all the téstimony; no instructions were asked; and the jury found for the plaintiffs. The defendants moved for a new trial, which was refused, upon which they took a bill of exceptions and prosecuted this writ of error.
    The errors assigned are : 1.' The circuit court erred in permitting the deposition of James K. Cook to be read as evidence on behalf of defendants in error. 2. The circuit court erred in overruling the objections of the plaintiff in error, to the reading the deposition of James K. Cook, for the causes set forth in first bill of exceptions. 3. The judgment of the circuit court is erroneous. 4. The circuit court erred in refusing to grant to the plaintiffs a new trial. ' 5. The court below erred in over-, ruling motion of plaintiffs in error for a new trial.
    
      
      Sandei's and Price, for plaintiffs in error.
    We contend most earnestly that the deposition of Cook was improperly admitted, because of the residence of the witness in the county, and because there is no showing upon what pretext it was taken. The plaintiff showed in first bill of exceptions, “ that he was absent without their knowledge or consent.” It was not shown that by age or sickness, or otherwise, he would be unable to attend; the proof was, that he was to return immediately after court. He was in contempt of the court, and a party should not be allowed to take advantage of the wrong or contumely of his own witness. But we contend, in a case like this, the witness was indispensable where he resided in the county, and constituted an exception to other witnesses, because the statute declares, “ that 'every notary shall be, and they are hereby required, to attend the courts of the counties of their respective residence when thereto required 'by subpoena.” See Street v. Kellogg’s Executors, 7 How. R. 342, where said provision is quoted by the coui't, and the right to have the attendance of such witness determined.
    But if we are wrong on this point, we feel confident that the other errors assigned are well taken; for the evidence is not sufficient to authorize the finding the verdict of the jury, and the court should have granted a new trial. The note, mentioned in his deposition, is for one dollar more than the note sued upon. He does not pretend to recollpct any of the facts that he deposes to. A party has a right to refresh his memory by reference to any memorandum or. act of his own, but the notarial record in this case is not made out in his own hand-writing, and therefore would not be competent to refresh his memory; indeed, he does not pretend to a refreshment of memory by it, and only swears by a record, without memory of any act. If he recollected any fact, the statement of his “ usual habit ” of serving notice by 10 o’clock, might go as a circumstance in support of one already established or recollected ; but here there is no foundation ; he recollects nothing; and, above all else, the facts stated in the record, if proven by him, are insufficient. It states that notice was left at the store of defendant, Dowell, on the day succeeding the protest, before 10 o’clock. With whom J Don’t say. Was any one at the store? Don’t say. Did Miss Dowell stay at or occupy the store, or was she in the county, or had an agent in it? Nothing like it, proven or shown. It is only proven that she had a store in Natchez at the time the note fell due.
    In cases like this, there must be proof conducing to show that the defendant received notice ; but facts must be established, from which such fact may fairly be inferred. They do not exist in this case; and although our courts are loth to distürb the findings of juries where the evidence conduced to establish a fact important to the issue, yet where there is an absence of material facts, and those at all relevant of so questionable a character, we think the court-ought not to hesitate to grant a new trial, and particularly in a case against a mere indorser; from all which we ask for a reversal of the judgment of the circuit court, and that the cause be remanded for new trial.
    
      Quitman and McMurran, for defendants in error.
    The first error assigned in this case is, as to the admissibility of Cook’s deposition on the part of plaintiff in the court below. The deposition was taken de bene esse; plaintiffs showed a return of service of a subpoena upon Cook, in due form, and that Cook was absent out of the state at the time. It was also shown, by the defendants, that the witness had left for the very purpose of not attending the court, but that the plaintiffs had no knowledge of the cause of his absence.
    The plaintiffs then showed that they had used all necessary diligence to procure the personal attendance of the witness, but had failed without any negligence or blame on their part. The motive which may have operated upon Cook to absent himself, (admitting that his declaration, upon the subject to a third person were admissible.) can have no influence in the decision of the question. If he was absent without the procurement of the plaintiffs, after having been subpoenaed, the court can look no further. We think ^this question has been fully decided in the case of Ellis'1 s Admr’s. v. Planters Bank, 7 How. R. 241.
    , The only other question is as to the correctness of the decision of the court below in overruling the motion for a new trial. Upon examining the proof, we think the court can entertain no doubt that the jury were fully warranted in rendering the verdict which they did. The liability of the defendant's below, and each of them, is clearly fixed. Under a verdict of the jury upon the facts, and the overruling of the motion by the court below, we feel satisfied that this court will not readily set aside the verdict and reverse the judgment of that court. We ask, therefore, for an affirmance of the judgment of the circuit court of Adams county.
   Mr. Justice Clayton

delivered the opinion of the court.

This was an action of assumpsit against the maker and indorser of a promissory note. There was a verdict and judgment in favor of the plaintiffs below, the defendants in error.

The first error assigned in argument is the permitting the deposition of the notary, J. K. Cook, to be read in evidence. Cook was a resident of Adams county, in which the trial took place. It was proven that he had been served with a subpoena to attend the court, and that at the time of the trial he was absent from the state without the consent or procurement of the plaintiffs. The deposition had been taken de bene.esse.

We think these steps, on the part of the plaintiffs, were sufficient to authorize the reading of the deposition, in accordance with the intimation of this court in the case of Ellis’s Admr's. v. Planters Bank, 7 How. 241.

The next bill of exceptions is to the overruling of the motion for a new trial. In this we can see no error. The evidence all went fairly to the jury, no instructions were asked from the court, a verdict was rendered for the plaintiffs, and we can see nothing in the record, which would justify our interference to set it aside.

One reason alleged for the new trial is, that the note described in the notice to the defendant, Lydia Dowell, varies from that offered in evidence, because in the description there is a difference in the amount of one dollar. The rule on this subject is thus laid down in Bayley on Bills, 253. “A notice to an indorser in which there is an error in stating either the date of the note, the day when it became due, the maker’s name, or the amount of the note, is sufficient, the note being in other respects sufficiently described, so that the indorser could not be misled by it.” This rule has been followed by courts of the greatest respectability in this country. Mills v. Bank United States, 11 Wheat. 431; Smith v. Whiting, 12 Mass. 6; Rudy v. Seixas, 2 Johns. Cas. 337; Ontario Bank v. Petrie, 3 Wend. 456; Bank of Rochester v. Gould, 9 Ib. 279.

The late case of Remer v. Downer, 23 Wend. 626, seems to manifest some disposition to qualify the rule. It is there said, “ a notice which is barely sufficient to put the indorser upon inquiry, is not enough. It should convey a distinct impression that the note indorsed has been presented and dishonored. No precise form of words is necessary for the purpose ; but the note should be sufficiently described to enable the party to see that it is the one indorsed by him.” Without undertaking to determine between these cases, we are of opinion that, according to either of them, the notice in this instance was such as to authorize the finding of the jury.

The question may be different where the notice itself states that the demand was made upon the wrong day. Then he might have a right to consider himself discharged, but upon this it is not necessary now to pronounce. See Ransom v. Mack, 2 Hill (N. Y.) R. 594.

The judgment is affirmed.  