Piper v. White ( 1867 )

The opinion of the court was delivered, November 14th 1867, by

Agnew, J.

The offer of the receipt and books set forth in the 1st assignment of error, was for the purpose of showing that the note in suit had been given for a previous indebtedness; but what bearing this fact had on the recovery of the note, the bill does not inform us. It was of no consequence what had been the consideration of the note without an offer of some evidence which would exhibit a defence growing out of the fact that the note had been given for a former debt. As the offer stood before the court it seemed to be irrelevant, and we cannot say the court committed a positive error in its rejection. It is the duty of a party in making an offer of evidence to state its purpose in such manner that the court may perceive its relevancy.

The admission of the entries in the plaintiff’s books was for the purpose of explaining, by the production of the whole account, the relation of the items in it read by the defendant. The defendant having shown the balance resulting from these items, and a receipt for the balance of the account, there was no error in permitting the plaintiff to read the whole account in the same books as a matter of explanation. The admission of the evidence extended no further. This disposes of the 2d, 3d and 4th errors.

The 5th assignment of error is not sustained. There was some tendency in the vouchers from the auditor-general’s office to rebut the order for wood given by Piper to the Whites by showing that he had received the money himself from the Commonwealth for the wood furnished by him. Whether the bills rendered were for the same wood upon which Piper drew his order in favor of the Whites, was a fact which the court was not bound to determine, but might submit to the jui’y.

We perceive no error in receiving the deposition of J. O’Friel, taken before George B. Bowers, Esq. The justice certified that the witness was duly qualified and examined, and that he subscribed the deposition in his presence. It must be presumed the deposition was correctly taken and reduced to writing by the justice or by his authority. The mere fact that the handwriting in the body of the deposition does not appear to be that of the justice, without some proof to rebut the presumption of regularity arising from the certificate, was insufficient to exclude it.

The writ of error in this case was taken to the original judgment, and not to the scire facias.

. If the writ operated as a supersedeas, which we do not determine, though the probability arising from lapse of time is against it, the plaintiff in error could have moved the court below to arrest the proceedings upon the scire facias. Without any step so taken, we will not now inquire into the regularity of the proceedings upon the scire facias. The judgment is affirmed.