
    Prescott, Jones & Co. vs. Edward Francis.
    P., J. & Co. brought an action of assumpsit against F. as indorser of a bill of exchange, and proved, by the deposition of the notary, the demand, protest, and notice, of a bill payable five days after sight, which corresponded in date, amount, parties, and in all other respects with the bill sued on j the copy of the bill, however, as indorsed on the interrogatories to the notary, was payable five months after sight, instead of five days, which discrepancy the notary points out, and sets out in his deposition a correct copy of the bill sued on. The plaintiffs proved every other fact necessary to entitle them to recover. The jury found for the defendant, and the circuit court refused to grant a new trial r Held, that the misdescription of the bill indorsed on the interrogatories, was a mere clerical mistake, which the jury might have disregarded. And a new trial should have been granted.
    Error from the circuit court of Hinds county.
    The facts are sufficiently stated in the argument of counsel and the opinion of the court.
    
      Mason and Burtoell, for plaintiffs in error.
    This was an action of assumpsit founded on a bill of exchange for two hundred dollars, drawn by one Mears, on J. F. Phillips & Co. in favor of defendant, and by him indorsed to plaintiffs. The bill is drawn at five days sight.
    The plaintiffs read to the jury on the trial the bill, the protest, and the deposition of the notary, proving demand and notice.
    The copy of the bill, as made upon the interrogatories to the witness, sets out a bill at five months sight, instead of five days. This the notary corrects, by giving in his deposition a true and correct copy of the bill sued on, which corresponds in every respect with the copy indorsed on the interrogatories, except the correction above stated. The jury found against the plaintiffs, and the court refused a new trial.
    The finding of the jury is manifestly against the law and evidence. The mistake in the copy of the interrogatories is corrected by the answers of the witness, and his testimony relates to the bill sued on, and not to any one of which the copy is given.
    This is the only point we conceive in the case, and we do not, therefore, make out a formal abstract of the record, which is short as any such abstract can be.
   Mr. Justice Thachek

delivered the opinion of the court.

This was an action of assumpsit instituted in Hinds county circuit court against the indorser of a bill of exchange, which had been protested for non-acceptance in the city of New Orleans. The protest of the bill of exchange, and notice to the indorser, was proved by the deposition of the notary, but in drafting the copy of the bill of exchange attached to the interrogatories to be propounded to the notary, the bill of exchange was described as payable five months after sight, instead of five days after sight, the latter of which descriptions corresponded with the term of payment of the bill sued upon in this action. In other respects, the bill was correctly copied. In his deposition, the notary observes and points out this discrepancy in the description, and testifies exclusively relative to a bill of exchange payable at five days sight, and to one in all other respects corresponding with the bill upon which this action Avas founded. All other proof necessary for a recovery by the plaintiffs was established on the trial, but the jury found for the defendant, and the court beloAV refused the pláintiffs a nerv trial upon their application.

The testimony of the notary clearly identified the bill of exchange concerning which he deposed with the bill sued upon in this action. The bill sued upon was payable five days after sight, and the bill spoken of by the witness was payable five days after sight, and the record shows that the commission to take the deposition of the notary was sued out in this action. These circumstances manifestly show that the misdescription of the bill of exchange was a clerical mistake, that, under all these circumstances, might have been disregarded, since it was sufficiently corrected, in point of fact, by the whole evidence in the case.

The judgment of the court below is, therefore, reversed, and a new trial must be awarded by the circuit court of Hinds county.  