This was an action of assumpsit brought by • Groff against Zerah T. Percival and Norval Sparks, trading under the firm of Zerah T. Percival and Co., for 99 dollars and 82 cents. The suit was commenced before William Steele, president of the select council of the town of Lawrenceburgh, who gave judgment in December, 1841, for the plaintiff. The defendants appealed to the Circuit Court.

There were two motions made by the defendants in the Circuit Court to dismiss the suit.

The first was on the ground, that the president of the council had no jurisdiction of the cause; and the second, that the statement of demand was insufficient. Both motions were overruled. The evidence upon which the first motion was determined is not before us, and we must presume, in favour of the decision, that there was no ground for the motion.

The statement of demand, which occasioned the second motion, commences as follows: “Zerah T. Percival and Co. Dr. to Joseph Groff,” &c. It is objected to, because the names of the defendants are not set out. The objection is un*234tenable. The suit was commenced, as it was necessary it . should be, against the defendants by their Christian names and surnames; but we consider it sufficient in this case, as it would have been in a suit before a justice of the peace, to file the demand against the defendants in the name of the firm.

On the trial, a deposition offered by the plaintiff was objected to, but the objection was overruled. The deposition was taken at Lawrenceburgh pending the suit, when the ■ witness was about to go down the Ohio river; and the defendants were present at the examination, and cross examined the witness. After the deposition was taken, and before the term at which the cause was tried, the witness returned to Lawrenceburgh, and stayed some weeks there with his mother. He was afterwards employed as a clerk on board a steam-boat on said river, and was acting as such clerk at the time of the trial; the boat touching at the' wharf at Lawrenceburgh almost daily on its way up and down the river. All objections to the want of a dedimus or notice were waived. The only objection made to the deposition is, that due diligence had not been used to procure the personal attendance of the witness. According to the statute, a deposition taken as the present one was may be read, if the witness be absent from the state at the time of the trial. R. S. 1838, p. 272. We think the absence of the witness in this case sufficiently appeared, under the statute, to authorize the admission of the deposition.

The judgment is affirmed with 5 per cent. damages and costs.