¶1delivered the opinion of the court. The charge of the judge below, was not excepted to, and must be presumed in every respect to be correct. So that the only question in this case is, whether the verdict is against evidence — and we clearly think that it is.
¶2The well settled rule of law is, that to show a waiver of demand and notice, there must be clear and unequivocal evidence. The deposition of Panky is of an indistinct, uncertain character; and the court think any preponderancy it has, is much in favor of there having been no waiver, instead of its affording clear evidence of such waiver.
¶3The only other proof, that of the endorser’s admission, amounts to nothing unfavorable. The judge below,- no doubt charged the jury, that there ought tó be clear and unequivocal evidence of waiver, to charge the defendant in that court; and if he did not so charge, we cannot see how lie could be satisfied with the verdict. He ought to have granted a new trial, when probably the testimony of Ragan, who made important proof before the justice, and who does not appear to be dead, might have .been had; and perhaps the personal attendance, or. a more explicit statement in writing, could be had from .Panky. The court is mindful of the established, doctrine, that a revising court will not reverse a judgment in such a case as this, unless clearly erroneous — this they believe to be so.
¶4There are some cases where courts have refused to set aside verdicts, on account of the justice of the case having been attained. But we do not believe this doctrine has ever been applied to endorsement cases, or cases founded •on commercial law — nor do we think it ever ought. It is *78impossible to tell, in this instance, on which side lies the jus^ce Qf £he cage — jn a}} cascs the COUrt knows no between the justice of the case, and the law of the case.
¶5Judgment reversed, and cause remanded for trial da nows.