Shelton v. Ford

• Citation: 7 Mo. 209
• Parties: SHELTON v. FORD & WHITEHILL, IMPLEADED WITH CALL.
• Decision Date: 30 September 1841
• Court: United States State Supreme Court of Missouri

7 Mo. 209

SHELTON

v.FORD & WHITEHILL, IMPLEADED WITH CALL.

Supreme Court of Missouri.

September Term, 1841.

ERROR TO ST. LOUIS CIRCUIT COURT.

C. D. DRAKE, for Plaintiff. The court below erred in admitting the deposition of Call to be read; and, also, after it was admitted, in refusing to exclude so much of it as related to a note, stated by Call to have been negotiated by him to A. M. Rucker, and by Rucker transferred to the plaintiff. Hubby v. Brown & Nichols, 16 Johns. R. 70; Hartford Bank v. Barry, 17 Mass. R. 94; Mann v. Swan, 14 Johns. R. 269; Manning v. Wheatland, 10 Mass. R. 502; 3 Pickering's R. 184; Bank United States v. Dunn, 6 Peters' R. 51; Bank of the Metropolis v. Jones, 8 Peters' R. 12. Again: the Circuit Court ought to have excluded so much of Call's deposition as referred to a note, as the suit was upon a bond, and the testimony consequently inapplicable.

GAMBLE & GEYAR, for Defendants. 1st. G. W. Call, who is admitted by the pleadings, and proved in evidence to have been the principal in the note, was, under the circumstance of this case, a competent witness in an action against his sureties. 2nd. Whether the witness, by the use of the term “note” in his deposition, intended to mean the instrument sued on, was a question of fact for the jury, and was therefore properly left to them by the court. Chitty on Bills, 654, and notes; Starkie's Ev. part iv. 297, and notes; see also, 2 East's R. 458, Burt v. Kershaw; derton v. Atkinson, 7 T. R. 481.

TOMPKINS, J.

Shelton filed in the Circuit Court of St. Louis county against said John Ford, John Whitehill and George W. Call, his petition in debt, founded on a bond made by said Ford, Whitehill and Call, to one Rucker, and by Rucker assigned to John G. Shelton, the plaintiff in this action. Judgment was given in the Circuit Court for Ford and Whitehill. George W. Call not being summoned in the cause. On the trial of the cause in the Circuit Court the defendants, Ford and Whitehill, introduced a deposition of said Call, which they offered to read in evidence. The plaintiff, Shelton, objected to the reading of this deposition, because it had been shown that Call was principal in the bond, and the defendants, Ford and Whitehill were his securities. This objection being made, a bond was filed “to indemnify and save harmless, said Call from and on account of all costs that have accrued or may accrue,” in the action. The Circuit Court then overruled the objection to the incompetency of Call, and permitted the deposition to be read. Call, in his deposition, called the instrument of writing here sued on a note, it being a bond without a condition, and the plaintiff then moved the court to exclude from the consideration of the jury all that part of the deposition that relates to a note stated to have been executed by the deponent and defendants, as not applying to the bond sued upon. The court refused to give the instruction, and the plaintiff excepted to the opinion of the court in that matter. The act concerning Securities, provides that “where any bond, &c., shall not be paid by the principal debtor according to the tenor thereof, and such bond, or any part thereof, shall be paid by any security therein, the principal debtor shall refund to such security the amount or value so paid, with interest thereon, at ten per centum per year from the time of such payment.” The rate of interest established by our statute is six per cent. Call, then, is directly interested in the event of this suit; for, if judgment...