delivered the opinion of the Courh
The Citizens’ Insurance Company brought their action against Elihu H. Shepard in the Court of Common Pleas of Sti Louis county, and judgment being there given for the company, Shepard appeals to this Court.
It is stated in the declaration, that one Samuel Brooks, on the twenty-first day of April, in the year 1842, made his promissory note, and thereby promised to pay to the order of said Shepard, for value received; sixty days after the date *275thereof, one hundred and seventy dollars, negotiable, &c., and delivered it to the defendant, Shepard, who endorsed and delivered it to the plaintiffs. The note not being paid when due, this action was brought against Shepard as endorser.
The bill of exceptions shows, that after the note and protest for non-payment were read in evidence, the notary public was called, who, being examined in chief, stated on the part of the plaintiff, that, on the day the note was protested, he was not able to find the maker, and that, next morning, as he believed, he left a notice of the protest at the dwelling-house of the defendant, with the wife or daughter of the defendant, the defendant himself being absent. On his cross-examination, he said that he might be mistaken about having delivered the notice at the defendant’s house, as he had stated in his direct examination, and his attention now being called to the matter more particularly, he thought he was mistaken, and that he delivered the notice to the defendant the next day after the protest, in person, a little before dark, in front of the defendant’s house.
On this testimony the defendant moved the court to instruct the jury that there was no evidence before them on which they could find a verdict for the plaintiff. This motion being overruled, the jury found a verdict for the plaintiff, and the defendant moved for a new trial — First, because he was surprised by the evidence of Joseph Y. Gamier, the notary public, the witness upon whose evidence the said verdict was found; second, because the said verdict was against law, evidence, the weight of evidence, &c.; third, because of a variance betwixt the proof and the declaration; because no sufficient evidence of notice of dishonor.
The defendant then made an affidavit, in which he stated that he was taken by surprise on the trial of the above cause, in this, that the said Joseph V. Gamier, a witness on behalf of the plaintiff, in his evidence, slated certain matters which were entirely false, and that he verily believes that in consequence of the false testimony of said Gamier a verdict was rendered against him, and that had the said Gamier testified to the truth, and nothing but the truth, that the verdict and judgment would have been in favor of the said ^defendant; that he did not anticipate what Gamier would state on the trial; that he verily believes that he will be able to show that the evidence of the said Gamier, given on the trial of the said cause, was, in several material points, false and untrue, should a new trial be granted.
A more slight pretence for a new trial was, perhaps, seldom or ever made. He knew from the declaration what the plaintiff would attempt to prove, and he must, if he had reflected a moment, have known that this proof would be, most probably, attempted to be made by the testimony of this said Joseph V. Gamier, the notary public; and he must also have known whether he had been informed of the protest for non-payment, and that the plaintiffs would not be so simple as to bring suit, unless they expected to be able to make out their case. Why, then, did not this defendant come prepared with evidence to rebut that of the notary public, or to impeach his general character as a man of veracity ? If, as is contended, we are bound to presume the facts stated in the affidavit to be true, we are equally bound to take notice that none but the grossly negligent man would have omitted to provide testimony to meet such a ease.
*276The endorser is indeed bound, as is contended, to show that reasonable diligence has been used to ascertain whether the maker had a place of residence, or a place of business, in town. It seems to me evident enough that he made out a very-good prima facie proof that the maker had no such place, either of residence or of business.
The notary stated, that in endeavoring to present the note, he went some distance up Main-street, and a little way down said street, and inquired of several of his acquaintances, whom he met, as to the place of residence or business of the maker; but none of them knew any thing about either his place of residence or business, or about the maker.
In such a place as St. Louis, if a notary public knew nothing of the place of residence or.place of business of any man,-it would raise,a reasonable presumption that such man had no place of business or place of residence in the city, other than a place of lodging in a boarding-house ; and if a notary public, in walking over a square or two along Main-street, could find no acquaintances that knew of such man, then, it appears to me, the presumption would be, that the man had neither place of residence nor place of business in St. Louis. That the notary inquired of two or three strangers “ that he casually met on the public street,” is a gratuitous assertion. The evidence on the record does not warrant such an assertion. The failure of Shepard, the appellant, to prove, or to attempt to prove, that the maker of the note had either a residence or a place of business in St. Louis, is strong evidence of the correctness of the notary’s conclusion, that the maker was a nonresident of St. Louis. The affidavit of surprise, made by the appellant, in order to obtain a new trial, is no other than such a one as any man, who is indisposed to pay his debts, would readily make; and the most negligent, as well as the most diligent might, safely make it, unless rebuked by conscience.
The judgment of the Court of Common Pleas ought, in my opinion, to be affirmed.