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Edge v. Keith et al. The plaintiff then read the depositions of three witnesses, who proved the suretyship of Edge for Jolly in the forthcoming bond, and the payment by Edge as his surety of the money sued for.

After other instructions the plaintiff asked these : viz., " It is competent for the plaintiff to prove by parol that the liability was incurred by him as surety for William Jolly; and that the plaintiff paid the amount as such surely; that the fact of securityship must be determined by the proof before them, and that the jury have nothing to do with the competency or admissibility of proof, but may judge of its sufficiency to establish any fact."

The court below refused to give these, but, in lieu of them, instructed the jury that “the fact of securityship must be determined by the proof before them, and they had nothing to do with the competency or admissibility of proof, and might judge of its sufficiency under the instructions of the court. It is con petent for the plaintiff to prove by parol his securityship unless there is written evidence of that fact; if the jury believe from the evidence before them that there is written evidence of his securityship, then he must produce that or account for its loss before he can prove the fact by parol.”

For the defendant, the court instructed the jury that “the record in evidence before them was not evidence that the plaintiff became bound in the bond as Jolly's surety, or that the bond was executed by Jolly as principal or the others as sureties; that the depositions in evidence before the jury could not be regarded as evidence that Jolly executed the bond as principal and plaintiff, and the others as his sureties, as stated in the depositions; that fact should be proved by other legal evidence, viz., the production of the bond itself, unless on proof of its loss or destruction, or its absence otherwise accounted for; and then on production of a copy of it."

The jury found for the defendant; and the plaintiff sued out this writ of error.

J. A. Hayes, for plaintiff in error, contended, 1. That the proof, though secondary in its character, fully

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Edge v. Keith et al.

proved the fact of securityship; and as the proof was read without objection, it was sufficient to establish the facts.

2. The record of the judgment is evidence of the judgment as a fact, and its legal consequences. 4 Phil. Ev. 820, 821.

3. To render objections to secondary evidence valid, they must be offered in season; when once admitted, it is too late. 3 Phil. Ev. 1213; Gaines v. Patterson, 3 Dana, 408; Williamson v. Johnson, 4 Munr. 254; 7 lb. 265; Pettigru v. Sanders, 2 Bail. 549; Kimball v. Morrell, 4 Greenl. 371 ; Concord v. McIntyre, 6 New H. 527 - 529; Callender v. Marsh, 1 Pick. 418, 425, 226; 2 Phil. Ev. 558; Blight v. Aberville, 7 Munr. 266; Tatem v. Payne, 4 Hawks, 64; Fleming v. Thomas, 4 J. J. Marsh. 48; Russell v. Union Ins. Co. 1 Wash. C. C. Rep. 440; 3 Phil. Ev. 789, and cases cited; Bank of Alabama v. McDade, 4 Porter, 252, 263; Willard v. Warren, 17 Wend. 257, 259; 7 Serg. & Rawle, 273.

4. The court's charges were inconsistent, in first admitting and then excluding the parol proof; the sufficiency of proof to allow the introduction of secondary evidence is a preliminary point for the court; once admitted, it is competent before the jury. Eure v. Pittman, 3 Hawks, 364; Ulica Ins. Co. v. Cadwell, 3 Wend. 296; Tayloe v. Riggs, 1 Pet. 591; Jackson v. Robins, 16 John. Rep. 581, 569; Rees v. Lawless, 4 Littell, Rep. 218, 220; 1 Dallas, 424; 3 Harr. & J. 219; 1 Henn. 444; 3 Phil. Ev., Notes 1219, 1224.

Watson and Craft, for defendant in error.

1. The proof was relevant, and could not have been objected to at the time, because the defendant could not know what the subsequent proof would be as to the absence of the bond; the party had a right to introduce his proof in his own order. He objected to it as soon as its insufficiency appeared, and before the jury had retired.

2. That the recitals in the transcript were not evidence. See 7 S. & M. 197, 204, 205.

3. That it was necessary to have the bond in evidence. See 1 Greenl. Ev. $ 82, 87, 88; 9 S. & M. 201.

Edge v. Keith et al.

4. That the want of competent testimony to the bond was properly raised by instruction. See 1 Greenl. Ev. § 421; 6 How. 32, 33.

Mr. Chief Justice Sharkey delivered the opinion of the court.

The plaintiff brought this action to recover money paid by him in Georgia, as surety for Jolly, the defendants' intestate. He introduced the record of a judgment recovered in that state against the plaintiff and others. By the pleadings set out in the record, it appears that the bond, on which the judgment was rendered, was a forthcoming bond, given by Jolly as principal and the others as sureties to the sheriff, conditioned for the delivery of certain personal property. For a breach of the condition, suit was instituted against all of the obligors, though Jolly was not served with process. A judgment was recovered against the other obligors, and they paid the money on the execution. The plaintiff also proved by the depositions of the sheriff, and the attorney who brought the suit in Georgia, the payment of the money by the plaintiff and his co-defendants as sureties. But the bond was not introduced, nor was it set out in the record, otherwise than by the pleadings.

On this evidence the court gave certain instructions, which were made the grounds of exceptions. They may be considered as presenting two questions: 1st. Was the transcript of the record, which was before the jury, evidence that the plaintiff was bound in the bond as surety of Jolly, or was it necessary to prove the execution of the bond, and the suretyship of plaintiff, by other evidence ? 2d. Were the depositions evidence that Jolly was principal in the bond, and the plaintiff and the others sureties, as stated in said depositions ?

It is said that, as Jolly was not served with process, he was not bound by the record.

In an action by a surety for money paid, he must prove the original agreement by proof of the bond or other contract; and if the fact do not appear on the face of the bond itself, it must be proved by other means, and that the plaintiff became surety at the request of the defendant. If he was compelled to pay by

Edge v. Keith et al.

execution, a copy of the judgment and writ should be produced. 3 Stark. Ev. 1383.

The record of this judgment was properly admitted to prove that the plaintiff had been sued, and that he had paid the money on the execution which emanated on the judgment. A record is always admissible to prove the judgment as a fact, and its legal consequence. 1 Stark. Ev. 188. Was the court correct in saying the judgment did not legally establish the fact that the plaintiff was but a surety? The bond is not set out in the record, but in the declaration it is stated as a bond given by Jolly as principal, and his co-obligors as securities. This was an immaterial averment, not necessary to be proved. Whether the plaintiff was surety or not, was a point not adjudicated upon. It was entirely immaterial to the plaintiff's right of recovery; it constituted no part of the cause of action; it was by no means necessary to prove that Jolly was principal and the others sureties, nor did the pleas raise such a question. The suit was on a bond with condition, and the question was, Had the condition been broken? When a record shows that the fact sought to be established by it was adjudicated upon, and that judgment could not have been given without deciding the point, it will be considered as settled by the judgment; but otherwise it will not. 3 Cowen & Hill's Notes to Phillips, 845. The court was correct, then, in saying the record did not legally establish the fact of suretyship.

Was the court correct in charging the jury that the depositions did not legally establish the fact that Jolly was principal and the others sureties, but that such fact must be established by other legal evidence? We have shown that it is generally incumbent on the party to produce the bond, and if that do not show who was principal and who surety, other proof may be resorted to. Under this rule, these depositions would have been incompetent, except in explanation of a matter which did not appear on the bond after it had been introduced. But they were read to the jury without objection, and they fully establish the fact that Jolly executed the bond as principal, and the plaintiff as one of his sureties, and also the payment of the money by the plaintiff. No objection whatever was made until the court was

Kyle v. Stinson. called on to charge the jury. This was too late. The party must be held to have waived the objection to the competency by permitting the depositions to be read without objection, or, at all events, by failing to make the objection until after the plaintiff had closed and the case was submitted to the jury. Carter v. Taylor, 6 S. & M. 367; Carter v. Graves, 6 How. 9; Russell v. Union Ins. Co. 1 Wash. C. C. Rep. 409, 441; White v. Kibling, 11 Johns. 128.

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

NELSON F. KYLE vs. ALEXANDER W. STINSON.

13s f92

301 385

The circuit courts have a discretionary power in the allowance of parties to

give security for costs after the expiration of the sixiy days allowed them on the motion for such security ; it will not therefore be error for the circuit court, at the term succeeding that in which the sixty-day rule was taken, to permit the plaintiff to give the security, although he allowed the sixty days to elapse without doing it; such permission is in conformity with the object and spirit of the law.

An error from the circuit court of Monroe county; Hon. Francis M. Rogers, judge.

The opinion states the facts.

Coopwood, for plaintiff in error.

Davis, for defendant in error,

Insisted, 1. That the whole subject was in the discretion of the court below, and could not be revised. 2. If revised, the discretion was properly exercised.

Mr. Justice Smith delivered the opinion of the court.
The only question in this case arises on the motion of the de-

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