
    William Coopwood, use of John Gordon, vs. Booker Foster.
    An objection to the manner in which a commissioh issued, not made in the circuit court, will not be heard in this court.
    Depositions taken in another state must, according- to our statute, be certified by the person taking them, “ according to the laws, customs and usages” of the state where they are taken ; hut in the absence of proof of what these laws are, the legality of the certificate will be judged of by the laws of this state. '
    In this case, numerous interrogatories were held not to be leading, as they only used language absolutely required to direct the attention of the witness to the subject upon which his testimony was sought to be obtained.
    The payee of a note who is the nominal plaintiff in a suit against the maker, for the benefit of the holder, is a competent witness for the defendant in the suit, if he be willing to testify.
    The testimony upon which the verdict of the jury for defendant was rendered, reviewed, and held sufficient to uphold the verdict.
    In error from the circuit court of Tippah county; Hon. Nathaniel S. Pric'e, judge.
    William Coopwood, for the use of John Gordon, sued Booker Foster, on his sealed note to Coopwood of May '4, 1836, at one dayj for $1000. The defence was payment, and four pleas were filed, setting forth in substance these facts, viz: That before the giving of the note Gordon owed Ma-ho-ba-tub-by $1000, which becoming due, and Gordon being absent, Foster^ as his agent, borrowed from Coopwood that sum, gave the note, and passed the sum to the Indian; that afterwards this act of the agent was confirmed by Gordon; and that Gordon, the debtor, in obtaining possession of the note, did so by its payment.
    On the trial the plaintiff read the note to the jury.
    The defendant read the written statement of John N. Willie, under defendant’s written agreement to admit it “as the testimony of John N. Willie,” stating, in substance, that in 1835 Foster sold to Gordon his interest in the land company of Gor-man, Winston & Co. Gordon was to make Foster a title in fee to several sections in the Chickasaw nation; Gordon, also, was to pay Ma-ho-ba-tub-by $1000 for a section the company had bought of him, and which section Foster was to have. Gordon did not pay the Indian, but Foster did pay him.
    The defendant then offered the deposition of William Coop-wood, the obligee, taken upon ' interrogatories and cross-interrogatories. A commission issued, “to any judge, master in chancery, or justice of the peace, greeting,” to examine the witness “ on certain interrogatories hereto annexed.”
    The following are the interrogatories to, and answers.of, the witness, viz:
    Interrogatory 1. — Please examine the note accompanying these interrogatories, and state whether or not you are the person to whom said note was made payable.
    Answer. — I am.
    . Int. 2. — Please state whether or not the money for which said note was given was not borrowed of you by defendant to pay a debt to an Indian by the name of Ma-ho-ba-tub-by, 'which the plaintiff John Gordon was owing, and was bound to pay.
    Ans. — My understanding was that Gordon was to pay Ma-ho-ba-tüb-by for section 31, upon which Booker Foster was making a farm at that time when the note was executed.
    Int. 3. — Who paid you the money on said note ?
    Ans. — Booker Foster paid me one hundred dollars, and John Foster the balance.
    Int. 4. — When Gordon paid you the money on said note, was the transaction intended and understood by you and him as a sale and transfer of the note, or was it intended as a payment and satisfaction of said note ?
    Ans. — It was understood by me as a payment on the note, and not as a "transfer, and thought Gordon viewed the transaction in the same light at the time.
    Interrogatories 5 and 6, and the answers, were in effect the same with the last.
    Int. 7. — When you informed Gordon that defendant had borrowed of you the money to pay Ma-ho-ba-tub-by, did he or did he not express his consent and gratification that defendant had borrowed the money and paid his debt for him in his absence 1 Or state what Gordon said on this subject, as nearly as you can.
    Ans. — He seemed to be well pleased that I had loaned Foster the money to pay the Indian in his absence.
    Int. 10. — From what passed between you and defendant when you loaned him the money, did you or did you not look to or expect Gordon to pay you the money back when he returned, or when you saw him 1
    
    Ans. — Foster told me that Gordon would pay me in a few days; that he would see him and inform him of what he had done; that Gordon probably would pass his house from Lagrange to Pontotoc, and would arrive at Pontotoc before I did, so that I would be sure to get my money.
    It is not necessary to set out the rest of the questions and answers ; they fully sustained the defence.
    The deposition was certified as follows, viz.
    
      “State of Arkansas, County of Bradley. ■ — I, William W. Mc-Dade, an acting and duly commissioned justice of the peace in and for the county of Bradley, and state of Arkansas, do hereby certify and make known that the foregoing deposition of William Coopwood was taken before me, on 27th May, 1845, between the hours and place in the caption hereof above written, and that the examination, responses and statement of said deponent was reduced to writing in my presence, by said deponent, and sworn to and subscribed at Warren, in the state aforesaid, and time; and that the deponent is a resident of the county and state aforesaid. In testimony whereof, I, W. W. McDade, justice of the peace, do hereby certify and set my hand, at Warren, and state aforesaid, this 27th May, 1845.
    W. W. McDade, J. P.”
    To this was appended the official certificate of the clerk of the circuit court of Bradley county, of McDade’s official character.
    The plaintiff then, under the objection of the defendant, which the court overruled, read to the jury a transcript of the bill, and proceedings in the superior court of chancery, by Foster against Gordon, commencing April 9, 1838, and ending March 18, 1839. This bill was for a specific performance by Gordon to Foster of the written agreement between them of May 23, 1835, exhibited with the bill; and by which Foster bargained and sold to Gordon his “rights, titles and claims” in the company called the “Chickasaw Land Speculation,” for and in consideration of “one thousand dollars, paid in hand,” and a legal title to three sections of land, which are.described. .The bill need not be noticed at greater length; a demurrer was sustained to it.
    The jury found for defendant, and a new trial being refused, plaintiff’s usee sued out this writ of error.
    Hutchinson, for plaintiff in error,
    Cited Hutch. Code, 841, 842; Emmons v. Myers, 7 How. 375; Anderson v. Miller, 7 S. & M. 586 ; Hutch. Code, 862, 863.
    
      T. J. Word, for defendant in error,
    Cited 4 S. & M. 113; Rwpert v. Grant, 6. S. & M. 433; 2 lb. 136; 7 lb. 507; 1 lb. 22, 157, 381; Hutch. Code, 862, 863.
   Mr. Justice Thachek

delivered the opinion of the court.

The first question is, as to the admissibility of Coopwood’s deposition and his competency as a witness.

The objections to the admissibility of the deposition, were, that it was not taken before any proper officer, and that the interrogatories thereof were leading in their character. The objection to the manner in which the commission was issued, was not availed of in the circuit court, and cannot now prevail here. Neeley et ux. v. The Planters' Bank, 4 S. & M. 113. The deposition is certified as having been taken by a justice of the peace of the state of Arkansas, whose official character is likewise certified to by the clerk of a county court of that state, with the seal of court. Our statute, Hutch. Code, 862, sec. 117, 118, requires depositions taken by the proper officers, to be certified by them “according to the laws, customs, and usages of the county, state or territory in which the deposition is taken.” In the absence of any proof of the law of Arkansas in this particular, the law of our state will be the criterion by which to estimate the legality of the certificate of the person acting as commissioner, and with us the certificate of the justice of peace is all that is requisite. The interrogatories were no more leading ■in their language than was absolutely required to direct the attention of the witness to the subject upon which his testimony was sought to be obtained.

The incompetency of Coopwood was insisted upon on the score that he was the nominal plaintiff, the one who had transferred the bill single in suit to Gordon the real plaintiff, and thereby had in good faith tacitly contracted, that he and subsequent holders could institute an action upon it in his name. Coopwood’s testimony was to the effect that Foster had borrowed the amount of the bill single from him, and given it to him as security therefor, but that he borrowed the money for the account of Gordon in a certain transaction, and that after-wards Gordon paid Coopwood the amount, recognizing the act and agency of Foster in his behalf; and in short, that he obtained the bill, not by purchase, but by its payment as a debt actually due from himself. Coopwood did not object to testify; it was for his interest to prove that the debt was due from Foster, if he were interested at all, and so according to our adjudications upon the technical points, he was competent. Duncan v. Watson Adm’r, 2 S. & M. 136 ; Smith v. Elder, 7 Ibid. 511.

But Gprdon introduced the transcript of record from the superior court of chancery, which shows, in connection with the testimony of Coopwood, and the agreed statement of Willie, that Foster borrowed the amount of money from. Coopwood on behalf of Gordon, to carry out a transaction, which by that court was declared illegal and void. This record itself, however, only shows that Foster filed his bill to enforce an agreement made between himself and Gordon, whereby Gordon purchased Foster’s interest in the land company of Gorman, Winston & Company, and agreed therefor to pay Foster $1000 in hand, and make him titles in fee to three sections of land. It was this contract which the chancery court in effect declared void. There is nothing in this record to show that Gordon agreed to pay the sum of $1000 to a certain Indian, as testified to by Willie and Coopwood, in order to remove his claim upon one of the three sections. This was a separate contract,'and is not affected by the contract between Gordon and Foster. The contract upon the bill single was between Foster and Coopwood; and at all events, if Gordon has a right to recover from Foster the amount paid by him to Coopwood, it cannot be in an action upon this bill single.

There is no valid objection to the competency of Coopwood, or to the testimony of Willie, in this case; and their testimony warranted the finding of the jury, and no different result could, we think, be legally obtained by a new trial.

Judgment affirmed.  