Dennard & Alexander vs. The State of Georgia.

66

with the entry thereon of the verdicts of the jury. The defendants objected to its going, because it afforded no evidence of a verdict against McIver- the verdict is, we the jury find the defendant guilty," and said they, "this verdict applies to all the defendants, except Hatsfield, as much as to McIver. There is no evidence of the trial and conviction of McIver." The Court overruled the objection and admitted the evidence, and this is assigned We do not think it is. It was not necessary in order to show a forfeiture of the recognisance, to prove a conviction at all, but if it was, then we think the bill of indictment and the verdicts and other entries thereon, show that McIver was tried and found guilty. The bill shows that Hatsfield and McIver alone were put upon trial; that Hatsfield was acquitted by name, and therefore the other verdict could apply to no other person but McIver. “Id certum est, quod reddi certum potest."

as error.

[1.] Again-it was claimed in the Court below, that there was no forfeiture of the recognisance, and therefore there ought to be no judgment against the bail. "The bond or recognisance, said the defendants, is conditioned for the appearance of their principal at the Superior Court of Baker County, on the first Monday in December, eighteen hundred and forty-five; he did appear on that day and having so appeared, all the obligations of the bond were fulfilled and the securities discharged." The Court ruled differently, and that is assigned as error. We do not think it is. It is true that a part of the condition of the bond is that the principal, McIver, "shall personally be and appear before the Superior Court, to be held in and for said County (of Baker) on the first Monday in December next, then and there to answer to the State aforesaid, of and concerning the playing and betting at Faro, &c." But this is not all the condition of the obligation- the condition in the bond proceeds "and shall not depart thence without leave of said Court." We hold that this bond binds the principal not only to be and appear at the term to which it is returnable, but to continue to appear until acquitted, or in some legal way discharged, or if tried and found guilty, until the sentence of the Court is passed upon him, unless he is permitted to depart sooner by leave of the Court had. And the evidence of this leave being had, is an exoneretur or other order of discharge entered upon the minutes. The bond is intended to insure the appearance of the accused to answer to the court of and concerning the offence charged; to answer not only to the charge but also to the judgment. Of course it is

Dennard & Alexander vs. The State of Georgia.

competent for the securities at any time to discharge themselves by a surrender of their principal in vacation to the Sheriff, or in term to the court. The question here is, was there a surrender? The record exhibits no evidence of it. Prince Dig. 470, 471; 1 Chitty Crim. Law, 86; Bacon Ab. Bail L.; 1 Taunton 23; 1 Saunders Plea. and Evid. 195, 196.

It appears further from this record, that McIver appeared at June Term, 1846, and answered to the charge, by pleading thereto and standing his trial, and that being found guilty, he departed thence without leave of the court-after the verdict was rendered but before sentence was passed. This appearance and answer was claimed in the Court below to have fulfilled the obligations of the bond and discharged the security. The Judge presiding thought differently and so ruled, and that ruling is assigned for error. We do not think it is, and our reasons for so thinking are given in the preceding paragraphs of this opinion. The sureties must have their principal to answer to the sentence of the Court.

It was further insisted before the Court below, that the paper [2.] purporting to be a recognisance, upon which the names of the defendants appeared as securities, is not a recognisance, because not taken by any person authorised by law to take a recognisance or admit to bail in criminal cases, and that therefore the paper should not be read in evidence to charge the defendants. The Court ruled in the evidence, and that is assigned as error. We do not think it is. Technically this is not a recognisance, because not an acknowledgment of a debt of record, nor before a judicial officer. It is signed and sealed and acknowledged before George W. Collier, not being a magistrate. The bond is taken under the Common and Statute law of England, which entitles a party arrested to give bond with security for appearance. It is in fact a bail bond; a contract between the securities and the State, and as such good. 2 Wheat. Selw. 794, note; 1 P. Williams, 334; 2 Vernon, 750; 2 Nott & McCord, 425, 426.

Let the judgment below be affirmed.

Vason, Ex'r vs. The Merchants' Bank of Macon.

No. 19.-DAVID A. VASON, executor of William H. Hamner, deceased, plaintiff in error, vs. THE MERCHANTS' BANk of Macon, defendant in error.

[1.] A witness, who has no interest in the subject of the suit, but who is liable for costs only, is disqualified from testifying, the law looking only to the nature, and not the quantum of interest.

Assumpsit. From Lee Superior Court. WARREN. November Term, 1846.

Tried before Judge

For the facts of the case, and the error assigned, see the opinion of the Supreme Court.

HINES, for the plaintiff in error, insisted that an accommodation maker, acceptor or indorser, is one that receives no consideration for the note, acceptance, or indorsement. 1 Bayley on Bills, 458; 1 Atkins R. 131.

And that this case does not come within the rule, that the witness would be liable over for costs if plaintiff succeeds in his action. 1 Greenlf. 401; 2 T. R, 100; Chitty on Bills, 671, 317.

RUTHERFORD, for defendant in error.

Mr. RUTHERFORD made the following points:

1st. That the contract about the two negroes was only a mortgage, a mere indemnity to Hamner, and not an absolute sale, or a conditional sale. 4 Kent, 144; Do. 144; 1 Paige Ch. R. 56; 7 Cranch, 237.

2d. That the contract being only a mortgage, Hamner, defendant below, stood towards Whitfield, the witness, as an accommodation maker. 3 Phill. Ev. (Cowen & Hill Notes) 1545, n, 118, old p. 131; Story on P. Notes, 324, sec. 281, p. 325, n; Bay. on B. 152, 315; in point, Chitty on B. 318, 319.

3d. That a maker who signs for the accommodation of an indorser, changes position with him, (quoad themselves at least,) and cannot have the indorser's testimony, the latter being liable over for costs. 3 Phill. (as above) 1547; 2 Smith L. Ca. 86, 7. But,

4th. If the contract is not a mortgage, but a conditional sale, Whitfield's interest is not balanced, since the value of the negroes

Vason, Ex'r vs. The Merchants' Bank of Macon.

and hire may be greater or less than the note and interest; if greater, his interest is to favour Hamner, if less, then to favour the Bank.

5th. And if Whitfield was not incompetent, for either of the above reasons and grounds, this testimony, which prores fraud, was not admissible at all, unless Hamner had first shown that, on his discovering the fraud, he returned the negroes, (or offered it,) or had shown that they were entirely worthless. 3 Wend. 236; 2 Kent, 480. We are not confined to the reasons given by the Court, the question now is, did it commit error in rejecting the interrogatories? 2 Tidd, 862. The Court of Error may look to the evidence of record on both sides, to see if the verdict for plaintiff was right. 2 Tidd, 864.

6th. The interrogatories were inadmissible, because they purport to have been taken for another and different case, viz: vs. "D. A. Vason, administrator," instead of executor.

7th. The testimony was not admissible, because it does not support the pleas, or either of them, in this, that the pleas allege that the Bank had held the fi. fa. and incumbrances complained of, when it took the note, while the proof is that the Bank had transferred the fi. fa.

NOTE. If a point is ruled during the progress of a cause, which becomes immaterial to the merits as finally made out, such point is no longer an error. There must be some injury. 1 U. S. Di. 419, cites 5 Pet. 135, 2 Halst. 357, 2 Aik. 177.

By the Court-LUMPKIN, J. delivering the opinion.

William S. Whitfield, being indebted to the Merchants' Bank of Macon, formerly the Bank of Hawkinsville, by judgments, procured to be made a note by one William H. Hamner, payable to himself, and by him transferred to the said Bank. Whitfield placed two slaves, Rose and Nancy, under the control of Hamner, either as the consideration of the note, or to protect him from the payment of the debt. Hamner was sued on the note, and pleaded, by way of defence, that John Rawls, the President of the Bank, promised him, Hamner, that the Bank lien on this property should be waived or extinguished, provided he would enter into this arrangement; and that, relying upon said assurance, he was induced to do so. But that the Bank, disregarding said pledge, have transferred some of the executions which they held against Whitfield,

Vason, Ex'r rs. The Merchants' Bank of Macon.

and that said negroes are liable thereto. And that consequently the consideration of the note has wholly failed, and ought not to be collected.

It was in proof that Hamner gave this note merely for the accommodation of Whitfield, and to enable him to make a settlement with the Bank of his old debts, and that he looked to Whitfield to pay the note when it fell due.

The testimony of Whitfield, taken by commission, was tendered to sustain the defence, and rejected by the Court, on the ground that Whitfield was incompetent to testify in the case by reason of his interest. To this opinion counsel for defendant excepted.

was.

[1.] The only question presented for our consideration is, was this evidence properly rejected? We are of the opinion that it Hamner being an accommodation maker only, Whitfield would be liable to him not only for the amount of the note, but for the costs incurred in the suit. And this interest, small as it is in amount, is nevertheless a disqualifying circumstance. The magnitude and degree of the interest is not regarded in estimating its effect on the mind, it being impossible to measure the influence any given interest may exert. It is enough that the interest which the witness has in the subject, is direct, certain, and vested. Nor is it necessary that the witness should be interested in that which is the subject of the suit, for, if he is liable for the costs, he is incompetent. 1 Greenleaf Er. secs. 347, 401, 402; Townsend vs. Downing, 14 East R. 565; Hubly vs. Brown, 16 John. R. 70; Scott vs. McLellan, 2 Greenleaf R. 199; Bottomley vs. Wilson, 3 Starkie R. 148; Harman vs. Lesbrey, 1 Holt Cases, 390; Edmonds vs. Lowe, 8 Barn. & Cress, R. 407.

Take another view of the transaction. Admit the truth of the plea, and that Hamner should lose the negroes on account of the Bank liens; it is manifest, that whether he be an accommodation party or not, and whether the conveyance by Whitfield to him be an absolute bill of sale, or only a mortgage to save him harmless, in any event, upon having the property arrested from him, Whitfield would be liable over to Hamner to make good the title, and to indemnify him in the costs which he had expended, as that would be the measure of his damages in an action against Whitfield. In this view of the affair Whitfield was properly excluded, as he was directly interested in protecting himself against such liabilities. The judgment below must be affirmed.