The first error assigned is the rejection by the court of the deposition of N. Clapp. The deposition was regularly taken, and Clapp was out of the jurisdiction of the court, at least could not be found on diligent inquiry. The ground of rejection was that the witness was interested, being liable to the defendant below for the costs of the suit as maker or drawer of the note on which this suit is brought against Spalding, one of the endorsers. The defendant proved that he had given the drawer, Clapp, a written release, duly executed, before the deposition was taken, and then proved that search was made for the original release, which could not be found, and offered secondary evidence of its contents. The court, however, ruled out the deposition, because sufficient search had not been made for the original, nor adequate evidence of its loss given. The judgment of this court, however, -is that the deposition ought to have been admitted, because the search made for the original release, and the secondary evidence of its contents, were ample. I do not see, for my part, how the defendant could have made a more diligent inquiry. He left no place unexplored where any reasonable probability of its being found existed. As it could not be found among the papers of the witness where they were left by him, the probability is that he may have carried it with him when he left the 'country, especially as a copy of it was found among his papers. It may be observed that this paper was not of primary importance in the cause. The issue did not hang upon it, nor was its production necessary to elucidate the rights or position of the adverse party. The authorities cited at bar clearly show that this circumstance is entitled to no inconsiderable weight. It may be added also, that the plaintiff’s attorney attended when the deposition was taken, made no objection, and cross-examined the witness, from which it may be inferred either that he know a release had been given, or that it was net intended to object to the witness at the trial, and thus take the defendant by surprise.
The second error assigned is, that the court erred in rejecting the written offers of evidence by defendant, numbered 2 and 3.
The evidence in offer No. 2, ought to have been admitted, because it proposed to prove that the acts and declarations of William L. Post were done and made as agent of the Susquehanna* Bank, and whilst he had possession of the note, on which this suit is instituted, and the bills of the Towanda Bank, which he, as agent of the bank, had received as collateral security at the same time that he received the note. The endorser was entitled to the bene*31fit of this collateral security given by the drawer; and good faith required that the holder should not part with it to the prejudice of the endorser without his consent: more especially for the purpose of making new terms with the drawer. The evidence proposed to be given formed in fact part of the res gestee, without which full justice could not be done between the parties. William L. Post, beside his beings the agent, was the president of the bank, the financial head; and these acts and declarations were within the scope of his authority, as an officer, and on that account ought to have been admitted: 2 Hall, 445. In addition to this case cited at bar, may be added the case of the Westmoreland Bank v. Klingensmith, 7 Watts, 523, where the endorser went to the cashier of the bank, and told him the drawer was about to send personal property away, and requested the cashier to issue execution on the judgment which the bank had obtained against the drawer, which the cashier refused to do, and said he would discharge him from his endorsement, and look to the drawer; it was held that this was a good discharge of the endorser.
The evidence covered by offer No. 3 ought to have been admitted, being of the same character as that proposed to be given in No. 2.
The third and last error assigned is, that the court erred in charging the jury that the plaintiff was entitled to recover. It is unnecessary, and would be perhaps out of place, to give any opinion on this assignment of error, as the cause will go back to be tried on a new and different state of facts. But in the very brief charge of the court, they instruct the jury that if the defendant wished to avail himself of the collateral security of the Towanda bills, he was bound to show, that they had been collected by the Susquehanna Bank, or were lost by carelessness; otherwise, the plaintiff was not bound to give any account of them. In this we think there was error. These bills were, I presume, the ordinary bank-bills or notes of the Towanda Bank. Bank-bills, or what is called relief notes, well understood by that name, pass from hand to hand, as money. It does not appear at what discount those bills then were, or whether or not they were current. But they were, doubtless, of some value, or they would not have been received as collateral security, and might have been passed off by the Susquehanna Bank, in which case it would have been impossible for the defendant to have traced them. Indeed, I know of no practicable means by which he could have shown the payment or loss of the bills. But it was very easy for the Susquehanna Bank to give an account of what was done *32with them. Good faith requires that they should do so: and the law will hold them to it.
Judgment reversed, and a venire de novo awarded.