Comstock v. Carnley

NELSON, Circuit Justice. The first question presented is, whether or not Jackson’s deposition furnishes competent proof of the suretyship of Comstock, in behalf of Jackson’s firm, to the railroad company. This proof is quite material, as it lays the foundation of the title of Comstock to the property in question. The original writing securing the company was not produced before the United States commissioner, and proved, but only a cbpy, which Jackson testified was a correct copy. That copy is annexed. I think the proof produced incompetent. It was no higher than parol evidence of a written instrument, the original of which was in existence. The original was in the hands of the railroad company, where as I understand from the deposition, Jackson examined it and procured the copy which he produced before the commissioner. The original should have been produced and proved before the officer, and he should have annexed a true copy, in returning the deposition to the court. Or, if Jackson could not have obtained the original, it was competent to examine the officers of the company in whose custody the paper was. Steinkeller v. Newton, 9 Car. & P. 313. I entertain strong doubts, also, as to the competency of Jackson as a witness for the plaintiff. His competency is put upon the ground that his interest is neutralized — that is, that he is liable whichever way the case may result. But, I am inclined to think, that, as the case stands, if the verdict should result in favor of the defendants, Jackson would not only be liable to Comstock for the property, but, as principal in the transaction out of which the litigation has arisen, would be bound to indemnify Comstock, his surety, for the expenses of the litigation. This would disturb the balance of interest. It is not necessary, however, to express a definitive opinion upon this question, as there must be a new trial, and the determination of the point will depend upon the facts as they may appear upon that trial. The case is one, also, that should have been put to the jury upon the question of fact, whether or not, under the circumstances attending the purchase of the goods in question, and the dealings with the bonds, the property did not belong to Jackson’s firm, and not to Comstock, the plaintiff. [255] Tlie case properly presented tliis question, and it belonged to tbe jury to determine it. For these reasons, there must be a new trial, with costs to abide the event.