
    MELTON v. TROUTMAN.
    1. If u part of a deposition is legal, and a part, illegal evidence, and a party object to it as a whole, it is not error in the court to overrule the objection. In such a case it is the duty of the objecting party to point out the particular portion of the testimony that he deems illegal.
    2. In an action for vexatiously sueing out an attachment, it is competent for the defendant to prove, in mitigation of damages, that the plaintiff was indebted to him in Georgia, and that he ranaway from that State with his property to avoid the payment of his debts.
    3. Where the defendant in an attachment suit, brings an action vs. the plaintiff for maliciously suing out the attachment, and offers in evidence, in connexion with the answers of such plaintiff, to interrogatories filed in said suit, under the statute, the interrogatories and his own affidavit therein, for the purpose of explaining the answers, without pointing out the necessity of any explanation, or the particular part relied upon for the purpose, the court may properly reject the whole.
    Error to the Circuit Court of Talladega. Before the Hon. S. Chapman.
    Action on the case, by Melton against Troutman, for wrongfully, vexatiously and maliciously suing out an attachment, returnable to Shelby circuit court. The attachment was sued out for the sum of $2,300, but the verdict and judgment were for $1,201 only ; the claim having been reduced by proof that usury entered into the consideration of the note, on which the attachment was founded.
    At the trial, the defendant offered the deposition of one Jones, who stated, with other matter, that the plaintiff resided in Georgia, from 1832 until 1842; in the month of February, of which latter year, he left, under very suspicious circumstances ; having runaway with his property, to avoid the payment of his debts. When, he left he was indebted to the defendant in the sum of $2,000 or upwards, as he told the witness. The plaintiff objected, generally, to all the answers, as containing irrelevant testimony, but especially that part just stated. The court allowed the deposition to be read.
    The plaintiff, afterwards, in the course of the trial, offered, as rebutting testimony, to read certain answers of the defendant, to interrogatories propounded to him in the attachment suit, and offered with said answers, so much of the statement made by him as the foundation for the interrogatories, and so much of the interrogatories as were necessary to the understanding of the answers. The statement asserted usury in the consideration of the note, on which the attachment suit was founded, as well as payment of particular sums of money in liquidation of all, or of a portion of what was due.
    The court refused to allow any part of the plaintiff’s statement, or the interrogatories to be read, but ruled that the answers might be read by the plaintiff.
    The plaintiff excepted to the rulings of the court, and they are now assigned as error.
    Morgan, for plaintiff in error.
    1. The answer of Jones to the 5th interrogatory, was irrelevant, and was calculated to prejudice the rights of the plaintiff.
    2.. It will be seen that Troutman’s answer to interrogatories propounded to him, refers, directly to the affidavit made by the plaintiff, and admits all the facts therein stated, which are not contradicted in the answer, The reference to the affidavit., made it a matter of evidence, and the court erred in exeluding it from the jury.
    
      S. P. Rice and L. E. Parsons, contra.
    1. When legal testimony is united with and offered together with illegal testimony, as a whole, the court is not bound to separate the good from the bad, but may reject the whole. Smith v. Zaner, 4 Ala. Rep. 99.
    2. Where a motion is made to exclude all the testimony given by a witness, a part of which is admissible, the court is not bound to distinguish the legal from the illegal evidence, but may overrule the motion in toto. Hrabrowski v. Herbert, 4 Ala. Rep. 265 ; Litchfield v. Falconer, 2 ib. 280. As to usury, see Kirksey v. Jones, when last here.
   DARGAN, J.

It is the duty of a party objecting to evidence, to point out with certainty, the evidence he deems objectionable. If it is offered by way of deposition, and the objection is to the whole deposition — the whole must be illegal, or there is no error in admitting it. If a part of the deposition only is illegal, the objection must point out the illegal part, and if it does not, the court may overrule the objection. 4 Ala. 265 ; 2 ib. 280.

Any other rule of practice, than this, would lead to results that would be intolerable, as it would impose on the court, in the midst of the trial, the necessity of suspending it, and examining the whole deposition, and excluding such portions as the judge might deem illegal, although in the opinion of the party objecting, the portion excluded by the court, might be legal. So, too, a party offering testimony, some of which is legal, and some illegal, if the court reject the whole, it is not error, for it is the duty of the party offering the testimony, to separate the legal, from the illegal, and if he will not, the court may reject the whole. Smith v. Zaner, 4 Ala. 99; Elliott v. Pearsall, 1 Peters, 328.

When, too, exceptions are taken to the ruling of the court below, in excluding testimony, the exception should point, with sufficient certainty, to the testimony rejected, to enable this-court to ascertain the character of the testimony, and determine whether it is legal, or illegal.

Guided by these general rules, we can find no error in the record. The objection was to the whole of the deposition of Jones, when it is certain that portions of it were legal testimony, at least for the purpose of showing, that the defendant was not actuated by malice, in suing out the attachment. One of the counts in the declaration, alledges, that the attachment was vexatiously sued out. Under this, he was entitled to vindictive damages, if the defendant had procured the issuance of the process maliciously. McCullough v. Walton, 11 Ala. 472; Donnell v. Jones, 13 Ala. 490.

The plaintiff, who was the defendant in the attachment shit, filed interrogatories to the defendant, for the purpose of proving, that the note on which the attachment was issued, was usurious. And in order to obtain an order of the court, allowing the interrogatories to be filed, he made oath, in conformity with the statute, setting out the facts constituting the usury. The defendant answered these interrogatories, and they were returned to the court in which the attachment was pending. The plaintiff, by way of rebutting proof, offered to read the answers of the defendant, taken in that suit, together with so much of the interrogatories, and the affidavit made by the plaintiff to obtain the order allowing them, as was necessary to understand the answers, but did not point out what interrogatory, or what part of the affidavit, was necessary for this purpose; but the answers, interrogatories, and affidavit, were all offered at once. The court decided that the answers might be read, but rejected the affidavit of the plaintiff, and the interrogatories.

We will not consider whether an interrogatory, which has been answered, may not become evidence for the purpose of explaining the answer, and to give it its full force and effect; but it is very certain, that when a mass of written evidence is offered, some of which is not admissible, and it is only said, that so much is offered, as will explain some evidence that is legal, without pointing out the necessity of any explanation, or what particular part is relied on for this purpose, the court may reject the whole. If there was any necessity for reading any one of the interrogatories, for the purpose of explaining the answer, the party offering the interrogatory, should have pointed it out to the court below. As he did not do so, the court properly rejected both the affidavit of the plaintiff, and the interrogatories.

It is, however, now contended, that the answer admits material facts in the affidavit of the plaintiff to be true, and thus the affidavit of the plaintiff is legal proof against the defendant. If the affidavit of the plaintiff, had been offered as evidence in the court below, because it had been admitted to be true, we think the circuit court would have allowed it to go to the jury. But it does not appear from the record, that it was offered as evidence on that ground, but solely on the ground of explaining the answers. We have, however, looked both to the answer, and the affidavit, and we find nothing admitted in the affidavit, that is not distinctly stated in the answer, by reading which, the plaintiff would have obtained the full benefit of every fact, admitted in the affidavit to be true.

There is no error in the record, and the judgment must be affirmed.  