
    
      MILLER vs. RUSSELL.
    
    Appeal from the court of the 6th district— die judge of said court presiding,
    Where a sjek^and cannot be courf,hhisev-¡lowiTon'a011 i^thTcaui, ^evidence,
   Mathews, J.

delivered the opinion of the court,' This suit is brought on an obligation contracted in the state of Alabama, by the defendant, Russel, and one Griswold,whereby they acknowledge to have received from the plaintiff thirteen hundred dollars, in consideration of a suretyship, into which they had entered on two bonds, in the state aforesaid, executed in order to carry up certain causes, by writs of error, from an inferior to a superior tribunal, in which judgments had been rendered against Miller, the present plaintiff, for 1090 dollars principal, besides the eosts in favor of Sneeds. The sum thus received by the obligors, they bound themselves to pay in dis-J r J charge of any judgments which might be rendered on the appeals against the obligee. Judgment in this case was rendered against the defendant in the court below, from which he appealed.

The evidence of the case shews, that the appellee in the present suit failed on his appeal taken from the judgment which Sneed had obtained against him in Alabama; and that neither the present defendant, or his co-obligor, has paid, or in any manner satisfied the amount thereof There was evidence offered on the trial of the cause in the court below, to establish the rate of legal interest in the state of Alabama, and also the liability in solido of the signers to the bond which is the basis of the present action. The testimony of M. S. M‘Whorter proves these facts; but to it there is a bill of exceptions, as having been improperly admitted.

The witness had been examined in open •ourt, on a former trial of this case, and his evidence was taken down in writing, which the plaintiff was permitted to read on the last trial: because the witness could not be then brought into court on account of sickness. We are of opinion that the judge a quo did not err in receiving the testimony thusonerecL It had been reduced to writing in the presence of both parties, and under circumstances where the witness might have been cross-examined by the defendant. It is true that he ought to have been again produced in open court, if it had been practicable. To have examined him, labouring under disease, and taken down his testimony,would have afforded no better evidence (perh’ps not so clear) as that which had been obtained from him on the former trial. See Starkie Ev. part 2, p. 261.

Thomas for the plaintiff—Oakley for the defendant.

It is, therefore, ordered, adjudged, and decreed, that the judgment of the district court be affirmed with costs.  