17 F. Cas. 1059 | Cir. Ct. N.C. | 1803
Loomis and Tillinghast assigned to the plaintiffs the note sued on, which was made by defendants, and afterwards became bankrupts, and obtained a certificate; and now Loomis is offered as a witness for plaintiffs. He is a competent witness, for he is by the certificate discharged of all debts provable under the commission, and his endorsement to plaintiffs rendered him liable to them, so as to make their demand against him. Secondly, the record of the proceedings against them, attested by the clerk of the district court, without any certificate of the presiding judge, is good evidence; for the act of Congress relates to certificates in case of officers of the several states, not to those of the United States. Thirdly, if the objection to a witness arises from proof made by the objector, the witness cannot discharge himself of the objection by any matter sworn by himself. It must be removed by proof drawn from some other source. Fourthly, depositions taken, not specifying the parties between whom they are taken, in the caption, nor naming them as parties in the body of the deposition, cannot be received. Fifthly, if a plaintiff, supposing himself ready, press for trial, and it is found on trial that the testimony he relied on cannot be given in evidence, as he expected, and he be nonsuited, the allegation of surprise shall not prevail to set aside the nonsuit.
NOTE. — See upon the last point, Rutledge v. Read, ante, 242, and the case referred to in the note on the last point in that case.