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.
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
[7 Mo. 210]
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...
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