THIS case was brought up, by writ of error from the Circuit Court of the United States for the Southern District of Mississippi.
There were three bills of exceptions taken upon the trial in the Circuit Court, which extended over more than one hundred pages of the printed record. The last one included the whole of the evidence. The substance of the case is given in the opinion of the court, to which the reporter refers the reader.
It was argued by Mr. Badger, with whom was Mr. William A. Graham, for the plaintiff in error, and Mr. Volney E. Howard, with whom was Mr. Walker, for the defendant in error.
The argument of the counsel for the plaintiff in error, was so intermingled with their statement of the facts in the case, that it will be necessary to insert the whole.
The declaration of the plaintiff in error, who was the plaintiff in the court below, is an assumpsit, and contains eight counts.
The first is on the promissory note of testator, in the name of Hicks & Arnold, for $456; the second is indebitatus assumpsit for hire of forty slaves; the fourth a quantum valebat for the services of forty other slaves; the third and seventh, each upon an account stated; the fifth for work and labor, goods sold and delivered, and money lent and advanced, and the seventh for money had and received; the eighth and last count is upon a special agreement of testator to hire from the plaintiff certain slaves mentioned in the count, and to pay the same rates of hire as the testator had agreed to pay Williams & Mills for the same slaves, &c.
The defendant pleaded 1st, the general issue; 2d, the statute of limitations; 3d, payment, upon which plea issues were joined, and the cause tried. The jury found a verdict in these words: 'That they find for the defendant upon the issues joined, as to the within note of four hundred and fifty-six dollars, and the within account,' and upon this finding, the court gave a general judgment for the defendant.
It is insisted, on the part of the plaintiff in error, that the verdict is imperfect, irresponsive to the issues, and does not dispose of the whole matter submitted by the pleadings; that upon the most favorable interpretation which can be given of it, it passes only on the first count on the note, and the third and seventh upon accounts stated, and leaves the matters arising upon the five other counts entirely undisposed of. That this verdict being thus imperfect, partial, and irresponsive to the issue, and consequently illegal, does not support the judgment, which is therefore erroneous.
The first bill of exceptions states, that the plaintiff objected to the reading of the deposition of Andrew Arnold, taken for the defendant, on the ground of his incompetency, but the objection was overruled, and the deposition read to the jury. Arnold was at one time plainly interested and incompetent.
In order to meet the objection, the defendant, by his 16th interrogatory, asks the witness, 'Are you interested in this case? if you have any release from the executrix of Joseph T. Hicks, please mark it, and inclose it.' To which the witness answers, 'I am not interested in this case; I have a release from Mary M. Hicks, the surviving executrix of Joseph T. Hicks, deceased, which is marked with the letter A, and is hereto attached.' By reference to the paper set out in the second, it appears to have been attested as a witness by one John Curan.
It is insisted, for the plaintiff in error, that the deposition ought not to have been read, because there was no legal evidence of the execution of the release.
1. The subscribing witness ought to have been produced, or his absence accounted for, and his handwriting proved, or other proper matter shown, to let in secondary evidence of the execution of the deed. This rule is of general application to all instruments attested, or appearing to have been attested, by a witness, whether produced to support the action, or used collaterally in evidence, and that no acknowledgment of the party, however solemn, though made on oath, will supply the want of evidence as to the subscribing witness. 2 Phillips, Ev. ch. 6, p. 201 to 203; Call v. Dunning, 4 East, 53.
The rule is very well and forcibly stated by Mr. Starkie. 1 Stark. on Ev. Part 2, sec. 139, p. 330.
In order to render a witness competent by a release, it must be produced and proved as in other cases. 2 Stark. Ev. Part 4, p. 759; Corking v. Jarrard, 1 Camp. 37; and it is then evidence in the cause for all purposes. Starkie, ut supra; Gibbons v. Wilcox, 2 Stark. Cas. 39.