| Tenn. | Jan 28, 1871
delivered the opinion of tbe Court.
Plaintiff sued defendant for the value of a mule, alleged to have been taken from him in 1863, by a squad of guerillas, of whom defendant was the guide and pilot; and, also, for the value of the mule, which plaintiff alleges defendant promised to pay.
Defendant relies upon the defense that he was the guide and pilot of the guerillas by coercion and force, and that he promised to pay for the mule under fear, produced by threats of military coercion, made by a brother of plaintiff, who had command of a military force.
The cause was tried by three juries, all of which found verdicts for the defendant. From the judgment rendered on the last verdict, plaintiff has appealed to this Court.
The charge of the Circuit Judge was unexceptionable, and there is sufficient evidence to sustain the verdict, if all the evidence allowed to go to the jury was legal.
It appears in proof, that, after the mule was taken from plaintiff, his brother, who was in command of a military force at Carthage, wrote a letter or order, addressed to defendant, threatening him with summary punishment, if he did not pay to plaintiff $125 for the mule. This letter was handed to plaintiff, and by him conveyed to defendant.
On the trial, defendant offered to prove the contents of the letter or order; and, to lay grounds for so doing, he made an affidavit, in which he stated that “plaintiff handed to him an order, made by F. M. Anderson, who
"Whether secondary evidence can be received or not, is a preliminary question, to be determined by the presiding Judge. He must determine from the proof, whether there is a reasonable presumption that the paper has been lost. If there be no ground of suspicion that the paper is suppressed, ordinary diligence to produce it will be deemed sufficient; and what is proper diligence, must depend much upon the circumstanced of the case. Tyree v. Magness, 1 Sneed, 276. Hence, before secondary evidence can be admitted as to the contents of a lost paper, the evidence, of the person who was the proper custodian of it,
It is next insisted, that the Circuit Judge erred in refusing to permit plaintiff to introduce witnesses to prove that Drury Smith, a witness for defendant, was incompetent, on account of his disbelieving in a God, or in a state of future rewards and punishments. This objection was made to the competency of the witness when he was first introduced, at which time plaintiff offered to call witnesses to prove his declarations as to his want of religious belief. The Court overruled this motion, and directed the counsel to examine the witness touching, said incompetency. Thereupon the counsel asked him, if he had not said to.Lucinda Smith and George Kinnard, that there was no more God or' Devil than in the palm of his hand, which witness denied; and if he believed in a future state of rewards and punishments, and if he be
This exact question arose in the case of Harrel v. The State, 1 Head, 125. In that casp, after alluding to the conflict in the authorities as to the mode of making proof of the incompetency of a witness in such cases — whether by examination of the witness himself, or by proof of his declarations to other persons — Judge McKinney said: “We have held recently, in a case not reported, that the party seeking to exclude a witness on this ground may adopt either mode of proof ; and we adhere to this determination, as the better practice. If the witness really disregards the obligation of an oath, it would seem to be neither safe nor consistent to resort to his examination. If he has voluntarily avowed his disbelief, we perceive no reason why this should not be proved in the same manner as any other fact.”