[443]*443Opinion of the court delivered by
McGirk J.
Peck brought an action of assumpsit against Davidson? to recover money laid out and expended by him for the use of Davidson. There are three counts in the declaration, the last of which is, ior money paid by Peck to the use of Davidson; on this count the court assessed the damages of the plaintiff and gave judgment.
On the trial of the cause, the plaintiff gave-in evidence a transcript of a record of the circuit court of Barren county, of the State of Kentucky, sitting as a court of chancery. Whereby it appeared that one Martin had brought a suit in chancery against 'Davidson as the administrator of the effects of one Ross, to recover a distribution share of said estate. That Davidson was duly served with process, and made no defence to the suit, but left the State of Kentucky and removed to Missouri. That then Martin amended his bill, shewing that Davidson had left the State, and shewing that Peck was Davidson’s security in the administration bond; the amended bill made Peck a party. Peck answered and admitted the securityship. And then the court decreed that Davidson and Peck should pay to the complainant, the sum of seven hundred and thirty-one dollars and sixty-six cents, wdth interest thereon, at the rate of six per centum. Also, the further sum of one hundred and three dollars and five cents, with six per cent, interest till paid. One Ross a party also, recovered the sum of ten dollars, 66 cents, and the decree gave the costs generally, against Davidson and Peck.
Several executions were also copied in the transcript of the record, which went to show the payment of the money or a part by Peck.
The defendant objected to this record and every part as evidence. On this point we see no valid objection to the record being allowed. The objection }oointed out by counse^ *s) that the record does not shew that Peck was Davidson’s security, jn any other way than by the alleg-atiqn in Martin’s amended bill, making Peck a party, and foy Peck’s .answer to that bill admitting the fact. It is true that the allegations of Martin against Peck as to the securityship, and Peck’s admissions of the truth of them, ]je no proof 0f themselves that Peck was security — • [444]*444and that unless the fact be proved by. other evidence, the plaintiff could not recover. But the record was properly .admitted, to show that Davidson had a decree against him; and that Peck had a decree against him for the same thing; and that Peck paid the amount of the decree.— Then, other evidence might and did properly come in, to shew the true relation in which the parties stood in regard to each other. The plaintiff did prove that son acknowledged that Peck was his security, and had paid the money or a portion of it. There was no error committed on this point.
Itis notnecessary gU®ha t™gtimo^ ny, going to prove the actual relation depositionWt it should recite the
The next objection made by Davidson in the court'below, was that certain depositions ought to have been eluded from the jury. These depositions were taken in the State of Kentucky, and from their contents appear to Be the depositions of the attorney of Martin, in the cause then decided, and of the clerk of the Barren cuit court.
Richard Garret the clerk, in his deposition says, the March term of the circuit court 1829, for Bai’ren ..county, of which court he. is clerk: there was a decree rendered in favor of John Martin, against Davidson a.nd Peck for a considerable sum; and that Peck afterwards made several payments &c.
It is objected to this deposition,. that as the witness speaks of a decree of a court of record, the decree or the authenticated copy of it, ought to have been before him and identified, enclosed and sent on with the deposition, otherwise the deposition should be suppressed.
The objection appears to be predicated on the rule that •when a witness in giving testimony, speaks of a written instrument which relates to the matter in hand, the instrument must be produced, otherwise the evidence re-' garding the instrument is to be set aside. The rule cannot be applied to the case at bar. In this case, Peck must prove the fact that there is such decree by the authenticated record, otherwise he could not recover at all. When that is done, testimony which tends to show who satisfied or paid the amount of the decree, ought to be admitted without re-producing the. decree. All that is wanted is to give such general description of the decree, that it may be seen that the payments proved do apply to . the proper case. When this is the object of testimony, the fact that a copy was before the witness when he spoke of it, will not enable him to identify it exactly, so as to make it appear without further examination, that it is the copy of the decree to which the testimony relates; [445]*445this can only be done by a general reference to the fact that such a suit or decree existed.
Where the circuit court ovorrules a motion to exclude tions1 on account of alleged malities facTof^uch'infor-malities existing, is ^ preserved by the courtCabove1S’ cannot kno.w but that the. court be-m^tion^because 6 the facts were falsely stated in t e motion.
If the circuit court sitting as a jury verdict its^udgment will not be -reversed in the appellate court, un-a potion was judgment and
[445]*445.It cannot be true that in every case where a witness speaks of the existence of a suit between parties, that the record of that suit must be produced, otherwise the testimony is to be set aside.
When a witness says certain monies were paid on account of, or in dischai-ge of a certain judgment or execution, the testimony is good so far. But if the fact, whether such judgment or execution ever had any existence, should be put in issue, or should be otherwise'ma-’ terial, then the record of them must be produced. Upon this ground, it seems to us, the court committed no eiror in refusing to suppress the deposition of the witness Garrett.
The other deposition was that of the attorney of Martin, to whom the payments were made by Peck. This deposition goes on to say, that on certain executions ~ ' ~ the wit-issued on the decree against Davidson and Peck, had received certain payments and made certain receipts. The witness says, copies of those executions were then before him, and annexed to his deposition.— The defendant moved the court to exclude the depositions, because the copies attached to the same, were not duly authenticated copies under the seal of the Barren circuit court. The court overruled the objection and received ihe^deposition as evidence.
We can see no gr°und on which we can know the court erred. It may be, the objection was overruled because the fact alleged by the motion was not true, and if SOj t|iere was no error> The record no where informs us how that fact was; and if the fact had been so, that fact should have been preserved. Then the question whether the copies ought to be under the seal of the court or not, would arise. The counsel for Davidson argue that the fact that there was no seal to the copies, is affirmed by the reasons in the motion; and that as this is not denied it must be taken to be true. This ground is not sound.
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[443]*443Opinion of the court delivered by
McGirk J.
Peck brought an action of assumpsit against Davidson? to recover money laid out and expended by him for the use of Davidson. There are three counts in the declaration, the last of which is, ior money paid by Peck to the use of Davidson; on this count the court assessed the damages of the plaintiff and gave judgment.
On the trial of the cause, the plaintiff gave-in evidence a transcript of a record of the circuit court of Barren county, of the State of Kentucky, sitting as a court of chancery. Whereby it appeared that one Martin had brought a suit in chancery against 'Davidson as the administrator of the effects of one Ross, to recover a distribution share of said estate. That Davidson was duly served with process, and made no defence to the suit, but left the State of Kentucky and removed to Missouri. That then Martin amended his bill, shewing that Davidson had left the State, and shewing that Peck was Davidson’s security in the administration bond; the amended bill made Peck a party. Peck answered and admitted the securityship. And then the court decreed that Davidson and Peck should pay to the complainant, the sum of seven hundred and thirty-one dollars and sixty-six cents, wdth interest thereon, at the rate of six per centum. Also, the further sum of one hundred and three dollars and five cents, with six per cent, interest till paid. One Ross a party also, recovered the sum of ten dollars, 66 cents, and the decree gave the costs generally, against Davidson and Peck.
Several executions were also copied in the transcript of the record, which went to show the payment of the money or a part by Peck.
The defendant objected to this record and every part as evidence. On this point we see no valid objection to the record being allowed. The objection }oointed out by counse^ *s) that the record does not shew that Peck was Davidson’s security, jn any other way than by the alleg-atiqn in Martin’s amended bill, making Peck a party, and foy Peck’s .answer to that bill admitting the fact. It is true that the allegations of Martin against Peck as to the securityship, and Peck’s admissions of the truth of them, ]je no proof 0f themselves that Peck was security — • [444]*444and that unless the fact be proved by. other evidence, the plaintiff could not recover. But the record was properly .admitted, to show that Davidson had a decree against him; and that Peck had a decree against him for the same thing; and that Peck paid the amount of the decree.— Then, other evidence might and did properly come in, to shew the true relation in which the parties stood in regard to each other. The plaintiff did prove that son acknowledged that Peck was his security, and had paid the money or a portion of it. There was no error committed on this point.
Itis notnecessary gU®ha t™gtimo^ ny, going to prove the actual relation depositionWt it should recite the
The next objection made by Davidson in the court'below, was that certain depositions ought to have been eluded from the jury. These depositions were taken in the State of Kentucky, and from their contents appear to Be the depositions of the attorney of Martin, in the cause then decided, and of the clerk of the Barren cuit court.
Richard Garret the clerk, in his deposition says, the March term of the circuit court 1829, for Bai’ren ..county, of which court he. is clerk: there was a decree rendered in favor of John Martin, against Davidson a.nd Peck for a considerable sum; and that Peck afterwards made several payments &c.
It is objected to this deposition,. that as the witness speaks of a decree of a court of record, the decree or the authenticated copy of it, ought to have been before him and identified, enclosed and sent on with the deposition, otherwise the deposition should be suppressed.
The objection appears to be predicated on the rule that •when a witness in giving testimony, speaks of a written instrument which relates to the matter in hand, the instrument must be produced, otherwise the evidence re-' garding the instrument is to be set aside. The rule cannot be applied to the case at bar. In this case, Peck must prove the fact that there is such decree by the authenticated record, otherwise he could not recover at all. When that is done, testimony which tends to show who satisfied or paid the amount of the decree, ought to be admitted without re-producing the. decree. All that is wanted is to give such general description of the decree, that it may be seen that the payments proved do apply to . the proper case. When this is the object of testimony, the fact that a copy was before the witness when he spoke of it, will not enable him to identify it exactly, so as to make it appear without further examination, that it is the copy of the decree to which the testimony relates; [445]*445this can only be done by a general reference to the fact that such a suit or decree existed.
Where the circuit court ovorrules a motion to exclude tions1 on account of alleged malities facTof^uch'infor-malities existing, is ^ preserved by the courtCabove1S’ cannot kno.w but that the. court be-m^tion^because 6 the facts were falsely stated in t e motion.
If the circuit court sitting as a jury verdict its^udgment will not be -reversed in the appellate court, un-a potion was judgment and
[445]*445.It cannot be true that in every case where a witness speaks of the existence of a suit between parties, that the record of that suit must be produced, otherwise the testimony is to be set aside.
When a witness says certain monies were paid on account of, or in dischai-ge of a certain judgment or execution, the testimony is good so far. But if the fact, whether such judgment or execution ever had any existence, should be put in issue, or should be otherwise'ma-’ terial, then the record of them must be produced. Upon this ground, it seems to us, the court committed no eiror in refusing to suppress the deposition of the witness Garrett.
The other deposition was that of the attorney of Martin, to whom the payments were made by Peck. This deposition goes on to say, that on certain executions ~ ' ~ the wit-issued on the decree against Davidson and Peck, had received certain payments and made certain receipts. The witness says, copies of those executions were then before him, and annexed to his deposition.— The defendant moved the court to exclude the depositions, because the copies attached to the same, were not duly authenticated copies under the seal of the Barren circuit court. The court overruled the objection and received ihe^deposition as evidence.
We can see no gr°und on which we can know the court erred. It may be, the objection was overruled because the fact alleged by the motion was not true, and if SOj t|iere was no error> The record no where informs us how that fact was; and if the fact had been so, that fact should have been preserved. Then the question whether the copies ought to be under the seal of the court or not, would arise. The counsel for Davidson argue that the fact that there was no seal to the copies, is affirmed by the reasons in the motion; and that as this is not denied it must be taken to be true. This ground is not sound. The motion may have been overruled for the very reason that.the fact was not true, all the court had to do was to sustain or overrule the motion, unless the party required the court by a bill of exceptions, to state how the facts were.
The next point made is, that this judgment ought to be reversed, because the verdict of the court does not matter in issue-. The action was assumpsit, plea non assumpsit. The finding of the court is, that the court [446]*446find that the plaintiff has sustained damages, to the amount of seven hundred and one dollars and ninety-one fth cents. Wherefore it is considered that the plaintiff • recover &c.
It is very true, that the issue is not expressly found, and the verdict is bad, unless the matter is cured by the
. The statute says no exception shall be taken to any tiling, unless expressly decided on by the court below.
c.ase, no was arrest The attention of the court below, was never called this defect; if it had, there can be no-doubt that the tef would have been speedily corrected. The counsel on both sides, have been requested to look into the decision of this.court, to see if any case can be found where judgment was reversed for such a defect, as exists in case. The result of that enquiry-is, that no such can be found. Though several cases have been shewn where judgments have been reversed for like defects, in every instance, the motion in arrest was made in .court below. We are therefore of opinion, that unless there-had been a motion to arrest the judgment, and had been refused, the objection is too late.
The defendant made a motion for a new trial, on the ground that the evidence did not sustain the finding of the court. On this ground, we are satisfied the evidence' was sufficient as to every thing, except .that the verdict is for about ten dollars too much. But the plaintiff having remitted that much, we ought now to grant a new trial. Indeed, for so small a sum in a case like this, it is matter of some doubt whether a new trial ought to have been-granted, if there had been no remittiter made.
The judgment is affirmed with costs.
Judge Tompkins absent.