Opinion of the Court by
Tompkins, Judge.
Benoist and Hackney brought their action against Powell, Fontaine and Wilson, and judgment being given against them, they come into this court to reverse that judgment.
The suit was brought on a promissory note made by Thomas L. Fontaine, payable to Peter Powell & Co, which company consisted of the defendants in this suit. The evidence showed that this promissory note was endorsed by Peter Powell & Co., and delivered to the plaintiffs, Benoist and Hackney. The endorsement was proved to be in the *226hand writing of said Thomas L. Fontaine,-the maker of said and one of the firm of Peter Powell & Go.. A clerk in the house of Peter Powell & Co. testified that he was at store -when the notice of this note becoming due was given : that he received the notice, and handed it to said pontajnej pUt jf fnt0 pocket: that there were no funds in thé house of Peter Powell & Co. to meet said note: that the proceeds of the note could not have been applied to the business of the firm without some “record” being made of it. The defendants introduced another witness, who stated that he was a clerk in the house of the plaintiffs, Be-noist & Co., and that he was present when the note sued on was given “ in lieu of, and to lift another note, given by said Fontaine, endorsed by Peter Powell & Co. The original transaction was in the fall of 1839, on which Fontaine gave to the plaintiffs a note signed by himself as maker, and by P. & J. Powell, as endorsers. This note fell due, and was renewed several times by Fontaine giving a new note with P. &. J. Powell as endorsers, and finally the endorsement was changed by a new note given' by said Fontaine, and endorsed by Peter Powell and Co. Witness did not know to what purpose the money originally obtained on the note was applied, nor did he know whether the plaintiffs knew that the money was obtained by Fontaine for his individual purpose, or to what purpose the same was applied ; but that he supposed it was for Fontaine’s individual use, as it was his individual note ; and he said Fontaine personally negotiated the original loan and all said renewals: that he presumed the endorsement of Peter Powell & Co. was for security ; that he did not know of any dealings in the way of loaning money and discounting notes between the plaintiffs and defendants on account of Peter Powell & Co. except the transaction above stated by the witness.”
The bill of exceptions having detailed, first, the evidence of Joseph Y. Gamier, next of Waters, a clerk in the house of Peter Powell & Co., and thirdly, that of the last witness, clerk in the house of Benoist & Co., the plaintiffs, concluded thus: “To the giving of the said testimony of the said Waters, as hereinbefore stated, said plaintiffs by their coun*227■sel objected ; and said testimony was given on the trial this cause. To the finding of the court sitting in this as a jury,- and the judgment of the court therein, the plaintiffs by their ¿ounsel objected, and this, their bill of exceptions, • is made out and signed by the judge as testimony in . the case accordingly.” •
granted un-for anew p>al ,in the circuit court and the asked, are pre^v®d e‘xn_ cep items,
The only matter that could be properly excepted to among those above enumerated, is the testimony of Waters. I do not see that it-is liable to any objection; and accordingly on the argument of the cause in this court, the counsel of the o i plaintiff’s contended for a new trial, which they say was improperly denied by the circuit court. The bill of exceptions contains no motion for a new trial. The clerk’s history of the proceedings in the court shows a motion for anew trial, with the usual reasons; and also an affidavit of Benoist, one of the appellants, stating the discovery of new evidence since the trial of this cause. If a new trial should be granted him, he expects to prove by Joseph Powell, originally a member of the firm of P. <fc J. Powell, that he said Joseph Powell endorsed the notes first mentioned by the witness, Hays, clerk of the plaintiffs, Benoist & Co., for said Thomas L. Fontaine, and that the facts of the said endorsements having been afterwards made by Peter Powell & Co., were known to the said firm of said company ; and that by other testimony he expects to be able fully to establish that said members of said firm of Peter Powell & Co. were fully liable on said endorsement, &c. Admitting that all this was saved in the bill of exceptions, still a new trial ought not in my opinion to be granted. Where is the residence of this newly discovered witness, Joseph Powell, the man who endorsed as a partner the name of P. & J. Powell as security on several notes made by this same Thomas L. Fontaine, for this same sum of money, with an increase of interest now demanded in this cause? We are not told that he is a resident of the city of St. Louis. But from the facts detailed in evidence we are left to presume that he is a merchant long residing in the place. The circumstance that Fontaine always negotiated'this loan in person, and first procured Joseph Powell to endorse the name of the firm of P. & J.Pow- *228^ °n noles as security> an^ that he afterwards endorsed notes made by himself the name of Peter Powell & Co., of which company he himself was one, was enough to in-p]ajntifrs to believe that the money was for Fon-taine’s private use; and who could be more likely to prove that this drawing was known, if such were the case, to Peter Powell, one oí the firm of P. & J. Powell, and at the same time one of the firm of Peter Powell & Co. It might be thought almost gross negligence not. to have summoned Joseph Powell in the first instance, living, as it were, at the court house door; at least there is nothing shown to raise a presumption that he is not a man of some length of residence in the city of St. Louis. If for such reasons as this, new trials were to be granted, it would be vexatious to suit-ers, and to dishonest men an opportunity might be afforded to tamper with witnesses; and a new trial would be little else than an appeal from one jury to another. But the matter not being saved in the bill of exceptions nothing more need be said. The judgment of the circuit court is affirmed.