McArdle v. Bullock & Radcliff

McCay, Judge. 1. The issue on a scire facias to make an administrator a party to a suit pending against one who is dead, is whether or not the person served is a proper party, in the capacity in which he acts. And if the suit be one that does not survive at law against the intestate’s estate, “he ought to make the question before he is made a party. 2. It would be giving far more force, to the mere heading of a bill of particulars than seems'proper, to allow it to control the formal allegations of the declaration. These defendants are sued in the body of the declaration, as joint contractors, and the bill of particulars charges the items to A and B. This is not strictly formal, but would any one say that a suit against John Smith, would be vitiated by a bill of particulars, headed Smith only. Indeed, it is doubtful, if the name of the party need be stated at all in the bill of particulars. The name is in the declaration, and the bill.of particulars is a mere detail of the items going to make the gross sum sued for. [92] 3. At most, the defect in this case is a mere variance, and not good after judgment. Our statute of amendments is very broad. Code, sections 3435 and 3436, expressly allow a defendant to be stricken out, and if there be no other legal difculty, that is, if the proof sustains the declaration, as amended, the plaintiff may proceed to judgment. 4. Interrogatories, when crossed and executed, are the evidence of the party who offers to the jury the report of the commissioners. If the practice of the Court permits the party bringing them in, to read, in the conduct of his case, only the direct answers, it is a new practice to us. We do not see why a party is not entitled to have his crosses go in with the direct, just as they would if the witness were on the stand. How is one-to lay the foundation for impeaching a witness, if by asking him cross-questions and introducing his answers he makes him his own witness? How is one to get any explanation, or any fact, but by a cross, from a witness he is able to cast discredit upon, or who occupies such a relation to the case, as that he is interested, or has been guilty of a crime? We are clear, that, by reading the crosses to a set of interrogatories, if the other side have read the direct answers, the party reading the crosses does not adopt the witness as his own, and he may discredit him, as he may any other witness of the other side. 5. The evidence in this case is not very strong, but there is sufficient to sustain the verdict. This Court is nota jury, and this is such a verdict as is not illegal under the evidence. Judgment affirmed.