delivered the opinion of the court.

The plaintiffs in error were sued on an indorsement made by their intestate on a promissory note. The indorsement was made by Frederic Stanton, as attorney in fact for Ellis. The reading of the note was objected to, because the power of attorney was not produced; but the objection was overruled, because defendants below had filed no plea denying the authority of Stanton, they having pleaded the general issue only.

The deposition of James K. Cook, taken under a commission, was also read; and this was objected to, because Cook was a citizen of the county in which the case was tried, and no steps had been taken to procure his attendance.

It is now assigned as error that the note and indorsements were improperly allowed to be read to the jury, without producing the power of attorney, and also that the court erred in permitting the deposition of Cook to be read in evidence.

By the rules of the common law, it would have been necessary to produce the power of attorney, but these rules are entirely changed by our statutory provisions. The act of 1824 is believed to cover the case before us. It declares that when a suit is founded on any writing, whether under seal or not, the court shall receive such writing as evidence of the debt, and it shall not be lawful for the defendant to deny the execution thereof, unless it be done by plea supported by affidavit. The latter part of the same section seems to have been framed with a view to such a case .as the present. It provides that whenever any person, other than the person *240purporting to have executed such writing, shall be defendant, the' court shall receive such writing as evidence, unless the defendant shall make oath that he verily believes the said writing was not executed by the person by whom it is alleged to have been executed. How. & Hutch. Dig. 594. If this note had been indorsed by Ellis in person, then it surely would have been incumbent on the defendants, if they wished to deny the indorsement, to have done so by plea supported by affidavit. But they wished to have proof of the authority of Stanton. It is the indorsement of Ellis, if made by his attorney, as much as if he had made it himself; but it is not his indorsement if made without authority. The plea of non-assumpsit admits the making of the indorsement as alleged in pleading, and it is set out in the declaration as Ellis’s indorsement made by procuration. It does not differ in principle from an indorsement made by Ellis in person; it is legally his indorsement, and so set out in the declaration. As such it must be evidence, unless denied by plea supported by affidavit. Here are persons defendants, who did not execute the instrument. But they admit that Ellis did make it, unless they deny by non-assumpsit or other plea, supported by affidavit, that it was executed by him as alleged. The affidavit puts the plaintiff on proof of the indorsement, in the same manner that the plea of non-assumpsit did at the common law. The power of attorney was necessary to make it a binding indorsement; of course it would have been incumbent on the plaintiff to prove the authority. Such an affidavit would put in issue, not only the indorsement of Stanton, but his power to indorse for Ellis. But without such affidavit the indorsement is admitted. Suppose Ellis were living and defending the suit, it is plain that he could not deny the indorsement except by plea under oath, and his administrators stand in the same situation.

But it is insisted that by the statute administrators are not bound to plead specially, and consequently that it was unnecessary for them to deny the indorsement under oath. It is true they are not bound to plead specially, and may give special matter in evidence under the general issue. This provision, however, does not change the rule of evidence which the law has prescribed for the plaintiff. It only enables them to do, under.the general issue, *241what they would otherwise have to do under a special plea. It enables them to make proof, not to demand it from the other side. There is no plea which puts the plaintiff on proof of a written contract, unless it be verified by oath. Administrators must call for such proof under oath, as well as others, or the plaintiff is not bound to give it. On the first assignment, then, we think the court decided correctly.

Was the deposition of Cook properly admitted? The deposition was taken in pursuance of the statute which provides that “if any party in a suit at common law or in chancery, shall make oath that he verily believes his claim or defence, or a material point thereof, depends on a single witness, the court, or the clerk in vacation, may award a commission to take the deposition of such witness, de bene esse, although such witness be not about to depart,” &c. How. & Hutch. Dig. 602, sec. 14. The eighteenth section of the same act provides that every deposition taken in pursuance of the act, “shall be read and used, and deemed as good and competent evidence in the cause in which it shall be taken, as if such witness had been present and sworn or affirmed and examined viva voce in ^pen court, if it appear to the satisfaction of the court that such witness is absent from or resides out of this state, or is dead, or by reason of age, sickness or bodily infirmity, or any other cause whatsoever, is unable to attend said court, but not otherwise” This latter section is looked to as furnishing authority for the introduction of the deposition, but we regard it as furnishing none whatever. The first section referred to authorized the taking of the deposition de bene esse; that is, to be read on condition, or provided there was no legal objection to its use when offered. The statute provides a summary mode for perpetuating or securing evidence in a cause then pending, but when it declared that such deposition was to be taken de bene esse, it of course intended to place its admissibility upon the same grounds on which all depositions of that description are admissible. A deposition de bene esse can never be read when the personal attendance of the witness can be liad: and the party introducing such a deposition must first lay a proper foundation for its introduction, by showing an effort to procure the attendance of the witness, for it can be used only on condition that a personal attendance cannot *242be procured. The authority cited from 4 Wash. C. C. Rep. is directly in point, and many others might be cited to the same effect. The eighteenth section referred to does not authorize an unqualified introduction of such deposition. On the contrary, it only provides that depositions taken in pursuance of the act shall be used as designed, and the design was that depositions taken under the fourteenth section should be used de bene esse only. In fact, the latter section is even more explicit as to the extent to which it was designed to reach; for it declares that such deposition may be read if it appear to the satisfaction of the court that the witness is absent from or resides out of the state, or is dead, or by reason of age, bodily infirmity, sickness or other cause, is unable to attend, but not otherwise. Now, the absence of Cook at the time of trial amounts to nothing. He was a resident of the county and bound to obey a subpoena. At all events it was the duty of the party to have had a subpoena served. He cannot say until he has done this that he could not procure his attendance; and the deposition was only admissible on condition that the attendance of the witness could not be had. Cook was not bound to remain in the state without a subpoena, but with a subpoena he was, and probably would have done so. An absence from the state, by the neglect or procurement of a party, will not authorize him to read a deposition taken de bene esse.

For this reason the judgment must be reversed, and the cause remanded.