majority">Daggett, J.

It was agreed, on the trial, that the note in suit was made and indorsed; that payment was demanded, and notice of non-payment given in due time; and that the plaintiff, therefore, was entitled to recover the amount of the 750 dollars and interest,—unless the facts alleged in the notice were substantially proved.

In proof of these facts, the deposition of Henry Benton, (he having been by the defendant previously discharged from all liability to him,) was read to the jury. The deponent swears to the facts stated in the notice. He also swears, that when he deposited the note, he took of the plaintiff a receipt expressive of the facts as alleged in the notice, to wit, that the note should be cancelled, upon the payment of the check of 300 dollars; and that the receipt, in the derangement of his affairs, had been mislaid; and that he had searched repeatedly for it, and could not find it. This is the whole proof introduced by the defendant.

We may well pause here, and enquire, or rather express our doubts, whether the defendant has substantiated, by competent proof, the facts on which he relies. The single testimony of the maker of the note, swearing to facts which go to impeach this note, negotiable in its inception, and by him negotiated, can hardly be said to be free from suspicion. Such testimony was *324not admissible in our courts until the case of Townsend v. Bush. 1 Conn. Rep. 160. This testimony is now inadmissible, it is believed, in Massachusetts, New-York and Pennsylvania. Add to this, the lame account he gives of the receipt, is not entirely satisfactory. He does not testify to its loss, nor to the loss of his papers generally; but it is mislaid,—his papers have been deranged,—he has searched for it, and cannot find it. This is the amount of his testimony on that point,—an all-important point to be established, before the secondary evidence could have been admitted.

If the objections to the testimony ended here, it might well be doubted, whether the great fact on which the defence rests, is proved, by the testimony of one credible witness, the least evidence required to establish a fact in a court of justice.

The deposition is liable to this objection, that it was taken ex parte; and, of course, there was no opportunity given for cross-examination.

But the testimony on the part of the plaintiff goes far to destroy all reliance on this deponent. There is not only nothing to corroborate him, but much to impeach him. Several witnesses swear, that his character for truth is bad, without any qualifications. Several, introduced by the defendant, concur in this declaration; but they would confine it to a period since his failure in 1829; and most of the witnesses, on being interrogated, testified, that this reputation was not gained, by a non-fulfilment of his contracts, but from other causes. His credibility, then, may well be questioned. Still, however, as the jury have found their verdict upon this proof, the court might hesitate to disturb it, were it not for the strong and almost irresistible testimony arising out of the documents under the hand of the witness, and the deposition of Ralph Wells, all speaking the same language.

The order on William G. Munt, drawn by Henry Benton, the witness, of the 8th of August 1829, directs him to pay the amount of this note of 750 dollars, to the plaintiff, and take it up. The letter of the witness to the plaintiff, of the 10th of the same August, directly recognizes the note, and requests him to obtain the amount of Munt. His letter of the 23rd of September, 1829, says: “I am now ready to pay you the amount of the note for 750 dollars, which I wish you to send to some friend of yours, by return boat, and inform me where I can pay it.” And again: “Do not fail to send the note immediately, *325as I am ready to take it up.” The deposition of Wells is full to the fact, that in the latter part of September, 1829, he saw Benton in New-York, who enquired of him if he held the note of 750 dollars, and on finding that it was sent for collection to the Hartford Bank, expressed his regret, saying, that he wished to pay it in New-York.

I feel no disposition to invade the province of the jury. They are constituted judges of the facts, in every case, with the aid of the court; and this should be conceded to them. At the same time, it must be yielded, as the prerogative of the court, to grant new trials, in cases where the verdicts are not only against the weight of evidence, but against the evidence. Bartholomew v. Clark, 1 Conn. Rep. 472. Johnson v. Scribner, 6 Conn. Rep. 185. Nichols v. Alsop, 6 Conn. Rep. 477.

If, in any case, the court is authorized to set aside a verdict and grant a new trial, surely it ought to be done in this, where the note and the numerous writings in relation to it, and the mass of testimony, are against it.

Let there be a new trial.

The other Judges were of the same opinion, except Bissell, J., who was absent.

New trial to be granted.

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