Crisman vs. McDonald et al.

On receiving this receipt, the agent of Mrs. McDonald gave to Street & Martin the draft which had been drawn in her favor, and which was accepted by the house of Street, Crisman & Co. of the city of Memphis. Street & Martin never shipped the cotton. W. B. Crisman, of the firm of Street, Crisman & Co., shortly after the giving of this receipt, went to Batesville, and seems to have assumed charge of the business of Street & Martin. At the time the receipt was given to Mrs. McDonald for eighteen bales of cotton, Logwood testifies that twelve or fifteen bales of the cotton were lying in front of the store, as the cotton which she was to have, and that Street & Martin told him that the balance was at the gin house. The cotton in front of the store was turned over to Buckner & Co. in the payment of a debt of Street & Martin, and for which the firm of Street, Crisman & Co. were liable as acceptors.

Mrs. McDonald brought suit against W. B. Crisman for the value of the eighteen bales of cotton, and recovered judg ment in the sum of twenty-two hundred dollars, from which Crisman appealed to this court.

There are thirteen causes assigned in the motion for a new trial, and we will dispose of them in their order.

First. "Because the court erred in permitting a part of the deposition of Logwood to be read to the jury as against the objection of the defendant."

Second. "Because the court erred in permitting the testitimony of L. C. Gause to go to the jury as evidence in the case over the objection of defendant."

Third. "Because the court erred in permitting the testimony of J. J. Martin, the rebutting witness, to go to the jury as evidence in the cause."

That portion of Logwood's deposition, which is objected to, is as follows: "They (Street & Martin) replied to my demand (for the cotton), that W. B. Crisman had possession of it;

Crisman vs. McDonald, et al.

that they placed it in his hands with other cotton which belonged to them. When I went back, in April of 1868, Street told me that they had set apart to Mrs. McDonald her full complement of cotton as they had promised me to do, and delivered it to Crisman." The exclusion of this testimony was asked upon three grounds: first, because it is hearsay; second, that Street & Martin were competent witnesses to establish that fact, and third, because the defendant was not present or a party to said conversation.

The testimony of Logwood, which the appellant objected to, is inadmissible to fix liability on Crisman. It is hearsay, and should have been excluded, but it does not follow, because of this error, that the judgment will be reversed, for it could not have prejudiced the cause of the appellant, as the same facts are substantially testified to by the very witnesses, Street & Martin, whom the appellant admits were competent witnesses.

The testimony of Gause and Martin is also objected to; but the grounds of the objection are not stated, as was done in Logwood's case. The code says: "An exception is an objection taken to a decision of the court upon a matter of law" (sec. 365), and the three hundred and sixty-eighth section says: "Where the decision is not entered on the records, or the grounds of objection do not sufficiently appear in the entry, the party excepting must reduce his exceptions to writing and present it to the judge for his allowance and signature." The object of a bill of exceptions is to present to the appellate court a point of law decided in the court below, prejudicial to the substantial rights of the party appealing. The bill of exceptions states that the appellant objected to the testimony of two witnesses, and that the court overruled his objection; but what his objection was, or the point of law ruled on, is not disclosed. Under this state of facts, how are

Crisman vs. McDonald et al.

we to ascertain whether the court below ruled correctly or incorrectly? The question in this court is, not whether the testimony of these witnesses should have gone to the jury; but is, Did the court err in its ruling upon the point of law, or objection presented to it by the counsel for the appellant?

There are various grounds on which and for which the testimony of a witness may be excluded. The testimony of a witness may be excluded on the ground that the witness is a person deficient in understanding; or that he is insensible to the obligations of an oath; that it is irrelevant, or that it is hearsay. Suppose a party were to object to the testimony of a witness upon the ground that he was a person deficient in understanding, and that his objection was overruled, and that he should take his bill of exceptions, as is done in this case, without specifying his ground of objection, and insist that the court erred in admitting the testimony, on the ground that the witness was insensible to the obligations of an oath, or on the ground that it was irrelevant, or hearsay; and suppose we should reverse on either one of the grounds, would we not be adjudicating and reversing a cause upon a ground not presented to the court below, and in a cause where it had not erred in any of its rulings and decisions?

Section 367 of the code says the objection must be stated. By this it is not meant that it shall be stated that the party objected, but that his reason or grounds of objection shall be stated.

In the case of Walrath v. Riley, 1 Bush. (Ky.), 268, the appellant offered to read in evidence certain depositions. The appellee excepted and the exceptions were sustained. To the ruling of the court the appellant objected and took his bill of exceptions, but the ground of objection was not disclosed. In passing on this defect, the court said: "He (the appellant should have stated in the bill of exceptions to the depositions

Crisman vs. McDonald et al.

the objections to the depositions, and the grounds upon which they were rejected. Unless the grounds upon which said de positions were rejected were stated and certified to this court, we must presume the court below decided correctly. The depositions, from anything that appears to us, may have been rejected for want of notice, or some other good and valid reasons besides incompetency, a question which is not now properly before us, and we need not express any opinion in reference to it."

In the case of Camden v. Doremus et al., 3 How., 530, after each deposition offered in evidence by the plaintiffs, the defendant, so his bill of exceptions states, "objected, and that his objection was overruled." Like the case at bar, the ground of objection is not disclosed. Justice DANIEL, in delivering the opinion of the court in that case, said: "With regard to the manner and import of this objection, we would remark, that they were of a kind that should not have been tolerated in the court below, pending the trial of the issue before the jury. Upon the offer of testimony, extended and complicated as it may often prove, it could not be expected, upon the mere suggestion of an exception, which did not obviously cover the competency of the evidence, nor point to some definite or specific defect in its character, that the court should explore the entire mass for the ascertainment of defects, which the objector himself either would not or could not point to their view. It would be more extraordinary still if, under the mask of such an objection, or mere hint at objection, a party should be permitted in an appellate court, to spring upon his adversary defects which it did not appear he ever relied on; and which, if they had been openly and specifically alleged, might have been easily cured. It is impossible that this court can determine, or do more than conjecture, whether it applied to form, or substance, or how far,

Crisman vs. McDonald et al.

if any particular view was presented to the court below, the court may have been warranted in overruling it. We must consider objections of this character as vague and nugatory, and, if entitled to weight anywhere, as without weight before an appellate court."

In the case of Doe v. Natchez Insurance Co., 8 S. & M., 205, Chief Justice SHARKEY said: "It does not appear, from the bill of exceptions, on what ground the evidence was objected to, or for what reason it was ruled out. The objection was general and it was sustained. It is proper, in objecting to evidence, that the ground of the objection should be stated, as in that way only can parties be confined, in this court, to the same ground of objections which was taken in the court below.

In the case of Miller v. Duff et al, 34 Mo., 169, it appears that the statement of an engineer not under oath was offered in evidence. To the reading of the certificate or statement, the defendants objected, and the court overruling the objection, they excepted. The bill of exceptions does not state the ground of objection, and in referring to this point Judge BATES said: "The objection to the admission in evidence of the memorandum of Peabody is not so saved as to authorize this court to look into it. The ground of objection is not stated at all." Woodburn v. Caydal, 39 Mo., 222.

This court held in Stillwell v. Gray, 17 Ark., 473, that "where there is an exception to the instructions given by the court below, and all the testimony is saved by a bill of exceptions, this court will consider the testimony only so far as it may be necessary to do so, in order to test the correctness of the instructions." It was also held in Carr v. Crain et al, 7 Ark., 250, that "the province of a bill of exceptions is not to draw the whole matter into examination again, but only the points to which it is taken, and the party taking it must lay his finger on these points."