
    Kingsley & Nichols vs. The Bank of the State.
    It is a general rule, that this court will presume the evidence was sufficient to authorize the verdict, unless the party who prays for a now trial, shows that all the evidence is in the bill of exceptions.
    Rut where a point of law is desired to be raised upon the construction and effect of an instrument, and the court are satisfied from the facts that no other evidence was relied on, it forms an exception to the rule.
    A power of attorney, “in my name and behalf to sign and indorse¡notes payable and negotiable at the Branch Bank,” áse. “as well for discount as collection, and to check for all money which may be deposited therein to my credit, from time to time, until this authority is revoked,” does not authorize an original in-dorsement as security for a third person.
    This was an action of assumpsit brought by the State Bank of Tennessee against the plaintiffs in error, as in-dorsers of a bill single executed by Christopher Stump.
    The plaintiffs below proved the indorsement of Kings-ley, and to prove the indorsement of Nichols, read in evidence the following power of attorney, which was proved to have been executed by said Nichols: “I, John Nichols, of the county of Davidson, state of Tennessee, do hereby authorize and empower Thomas H. Fletcher, in my name and behalf, to sign and indorse notes payable and negotiable at the Branch Bank of the State of Tennessee at Nashville, as well for discount as for collection, and also to check for all moneys which may be deposited therein to my credit from time to time, until this authority be revoked at said bank.”
    The plaintiff then proved that the aforesaid note was indorsed in said Nichols’ name, by Thomas H. Fletcher, his attorney in fact.
    The plaintiff proved, that when the note fell due, it was not paid by the maker, and in order to prove notice, offered to read in evidence the protest made by Washington Perkins, at that time Notary Public, on which protest was an indorsement, that “the mclorsers were duly notified in writing;” having previously proved that the said Notary Public was dead, and that the indorsement was in the handwriting of Miss Perkins, who made the entry by her father’s directions. The defendants objected to this evidence, but the court received it, and exception was taken thereto by the defendant.
    John Sommerville proved, “that he inferred that Mr. Nichols did not dispute the claim, hut did not recollect the facts from which he made this inference,” although he states, “Nichols never directly acknowledged any liability, nor confessed or denied that he had received notice.”
    The note which was drawn and indorsed, was also read in evidence, at the bottom of which were these words: “credit the drawer, J. N. by his atto.”
    A verdict and judgment were rendered for the plain tiffbclow, and a new trial moved for and overruled. A bill of exceptions was taken to the opinion of the couri in overruling the motion for a new trial, which did not conclude by stating that it contained all the evidence in the cause.
    O. B. Huyes, for the plaintiffs in error.
    The hill ol exceptions purports to set out all the evidence in the cause, although it does not say so in express terms.— Amongst other things it shows, that the indorsement of the note in question was made by Fletcher, as the attorney of Nichols, by virtue of a certain power of attorney. It shows also, that the indorsement was not made in Nichols’ behalf, or for his use and benefit, as authorized by the power, hut for the benefit of the drawer of the note, as is evidenced by the letter D upon the back of the note, showing that it was discounted by the Bank, and the memorandum on the face of the note, “credit the drawer, J. N. by atto.” From the plaintiff’s own showing, it thercforu appears that the note was not indorsed by Nichols; the power not aumormng sucli an indorsement. NicJiols vs. Green, 'Peck’s Rep. 289#
    2. Nichols lived four or live miles in the country; it cannot he pretended that any other notice was given him than hy putting the letter into the post office, which is not sufficient. Barker vs. Hall, Martin and Yerger’s Rep.
    The memorandum on the Notary’s hook, “indorsers duly notified in writing hy me, 18th June 1819, W. Perkins, N. P.” in the handwriting of the Notary’s daughter, when taken in connection with the other evidence, shows that he did not understand the law. He was not duly notified, even if the notice were put into the office on the 18th August 1819, which is the day after the note fell due, instead of the time mentioned in the Notary’s hook.
    Although the hill of exceptions professes to give tin; evidence tending to show that the indorser was notified, yet there is no sufficient evidence of that fact. In the detail of it, the witness, John Sommervi lie, stated, “that lie inferred that Mr. Nichols did not dispute the claim, but did not recollect the facts from which he made this inference,” although he states “Nichols never directly acknowledged any liabilities, nor confessed nor denied that he had received notice.”
    Aside from the insufficiency of this proof to establish notice, a part of it is clearly inadmissible, and therefore a new trial ought to granted.
    It cannot be presumed even in favor of a verdict, that a plaintiff’ would contradict his own testimony, nor that whore an attempt is made to set out the evidence of the cause, in reference to any particular point, that there was evidence in reference to that point which is not stated; although if no attempt were made to state the evidence, either in reference to the whole cause or any particular point m the cause, you would m that case presume it to have been sunicient.
    
      F. B. Fogg, for defendant in error.
    The questions presented in this record are upon the same state of facts which have been decided in this court and the supreme court of the United States, as evidence of notice. See Peck’s Rep. 261, 268: 8 Wheaton’s Rep. Nichols vs. Webb, 326.
    It does not appear from the hill of exceptions, whether all the evidence before the jury is there stated, and therefore a court of error cannot interfere with the discretionary power of the judges below in refusing a new trial.
   Catron, Ch. J.

delivered the opinion of the court.

The record sets out the evidence as it was introduced by plaintiif and defendants, and manifestly all the evidence] introduced by the ’hank, to show that Fletcher had power to indorse the note for Nichols. The declaration alleges the note to have been indorsed by Nichols, by his attorney in fact or agent, Fletcher. The note was read; Kingsley’s handwriting proved; then Nichols’ handwriting to the power, and that Fletcher indorsed the note in virtue thereof, in Nichols’ name; also, that Fletcher ordered at the foot of the note, credit by the bank to be given to Stump, the drawer. The power was the same set forth in Nichols vs. Green, (Peck’s R. 283) which opinion received the sanction of the court in different causes arising on the same power afterwards.—It is stated that the power was restricted to the business of Nichols, and only to he exercised for Nichols’ benefit, “and on his behalf.” The record shows it was exercised on the behalf of, and for the benefit of Christopher Stump. Was the jury authorized to render a verdict for the plaintiff, construing the power as the supreme court afterwards did? It is clear the verdict ought to have been for the defendants, if there was no other proof than that. Paley on Agency, 164. But it is insisted, that the court is hound to presume there was sufficient proof to authorize the verdict, unless the party praying a new trial show that all the evidence is in the hill of exceptions, by which the presumption is negatived. This though generally true, is not always so. It may he that a certain point of law is desired to he raised, as on the extent of this power, when only the evidence showing the authority should he set out. If the court are satisfied from the facts set forth, that no other evidence was relied upon by the plaintiff, it will determine the point of law arising, so that justice may be done between the parties. That the power was decided in April 1823, by the county court of Davidson, sufficient to authorize Fletcher to indorse the note in Nichols’ name, but for the benefit of Christopher Stump, cannot be doubted; and that its introduction was deemed the only necessary point of evidence on this point of the cause, and that it was the only evidence showing authority in Fletcher, read on trial, we think clear It is manifest, that to presume to the contrary, would be presuming a mere possibility, at war with the record. If it were probable other evidence was introduced, showing the note to have been indorsed for Nichols’ benefit, the verdict should be sustained; but the court cannot do so, resting upon a mere possibility, and this contradicted by the fact that the note was made to the bank, and the drawer credited by order of Fletcher, as Nichols’ attorney.

It was urged in argument, that Nichols might have been the previous indorser of Stump, and this a renewal of a former note, indorsed by Nichols’ himself, and therefore it would have been done “on Nichols’ behalf,” within the construction given to the power. Without giving any opinion whether the power authorized such an in-dorsement, it is sufficient to say, such a presumption is too remote and too improbable when opposed to the facts on record to sustain the verdict. We therefore think the issue was not decided by the jury conformable to the now settled law, and that the cause must be remanded to the county court for another trial; when, if true, it may he ascertained whether the note was indorsed for and on behalf of Nichols, within the construction given to the power in Nichols vs. Green.  