
    John G. Bohr vs. Steamboat Baton Rouge.
    An application for a continuance is addressed to the discretion of the court, and if it be refused, cannot generally be assigned as error.
    It is competent for counsel to agree that a commission to take a deposition may issue at any time, and to provide that notice of the time and place of taking the deposition shall be given to their clients. Where, therefore, it was agreed between the counsel of both parties, that a commission should issue forthwith, without affidavit, to take a deposition, and that one day’s notice of the time and place of taking the deposition should be given T. R. L. & Co.; and the notice was given to H. R. L. & Co., and a member of that firm attended the taking the deposition: Held, that the notice not being in accordance with the agreement, the deposition might be properly ruled out.
    If a motion for a new trial be overruled by the circuit court, the high court of errors and appeals may reverse the judgment of the court below, either on account of an improper exclusion of evidence, or because the evidence greatly preponderated against the finding of the jury: but a new trial will not he granted unless it clearly appears that justice has not been done in the court below; or where it appears that the jury found according to the weight of evidence ; or where there is little reason to suppose that a different result would ensue on another trial. A new trial will not therefore he granted because a deposition was improperly ruled out by the court below, which, if admitted, would not have justified a verdict in favor of the party offering it.
    EReoe from the circuit court of Adams county ; Hon. Charles C. Cage, judge.
    On the' 20th day of April, 1841, John G. Bohr sued out an attachment from the office of Louis Robitaille, a justice of the peace of Adams county, against the Steamboat Baton Rouge, the owners being unknown, to recover the sum of six hundred and thirty-six dollars, the alleged value of three boxes of merchandise, shipped on board of that boat from New Orleans to Natchez, and lost or destroyed through the negligence of the officers of the boat. On the 28th day of May, 1844, the cause was tried in the circuit court of Adams county, and the jury returned a verdict in favor of the defendant. The plaintiff then moved for a new trial, the court overruled his motion and he filed a bill of exceptions, which discloses the following facts : When the cause was called for trial, the plaintiff moved for a continuance, because, on the 20th day of May, 1844, he had filed interrogatories, and given notice that he would, on the 23d day of May, 1844, sue out a commission to take the deposition of Francis P. Beck, to be read as evidence on his behalf, at the trial of the cause, which motion the court overruled. On- the trial the plaintiff offered to read the deposition of Francis P. Beck, which proved in substance, that on the 24th day of May, 1841, lie was. a commission merchant in New Orleans, and on that day he received from shipboard, three boxes of merchandise, having the general appearance of boxes shipped from the north to New Orleans, and in good order; which boxes he shipped on the same day on board of the steamboat Baton Rouge, then lying at New Orleans, and bound for Natchez, Mississippi, marked J. G. Bohr, and consigned to John G. Bohr; that he knew nothing of their appearance when they were received, or where they were stowed on board of the ship. On cross-examination, he said the boxes were not stored in New Orleans; that he was not interested in the result of the suit, but he was'interested in showing that the goods were not taken out of the boxes while in New Orleans, as he supposed he would be responsible for them, if taken out while the boxes were in his possession; that he did not know that the boxes were in the same condition when received in New Orleans, as they were when shipped at New York; he knew nothing of, their contents, and only knew they were shipped by him by a reference to the bill of landing which was filled up by himself. . Annexed to the deposition was an agreement, signed by the counsel of both parties, in these words : “It is hereby agreed that the affidavit in this case be waived, and that a commission be issued forthwith, and that notice of one day be given of the time and place of taking said deposition to Thomas R. Lee & Co.. No. 7, Magazine street, New Orleans.” The commissioner before whom the deposition was taken, certified that he gave one day’s notice of the time and place of taking the deposition to the firm of Henry R. Lee & Co., and Theodore Shute, a member of that firm, attended the taking the deposition. The court ruled out the deposition. No other evidence appears in the bill of exceptions. The plaintiff brought the case to this court by writ of error.
    
      Thomas Reed, for plaintiff in error.
    1. The first error assigned in this cause is, “ that the court below erred in not granting a continuance of the cause at the term at which it was tried.”
    It appears, on looking into the record in this cause, that when it was called for trial, proceedings had been commenced to sue out a commission to take additional testimony; the commission had not issued; and it also appears, that the time required by law, for notice of the issuance of such commission, had not elapsed. The interrogatories were filed, affidavit had previously been made, and notice was given in conformity with the statute, H. & H. 603, sect. 16; 610, sect. 36.
    We consider that under the practice of circuit courts it was unusual and erroneous to force the plaintiff to a trial, when he was manifesting every diligence to prosecute and bring his cause, with its full merits, before the court*-
    2. The second reason why the court erred, was, in not granting a new trial, the plaintiff being forced to a trial at the time he was using every exertion to prosecute his cause, and when, as the record shows, he had taken the preliminary steps to procure more evidence. He was not prepared to go into a trial ■of his cause, and was consequently taken by surprise; on this ground then he should have had a new hearing. Graham on New Trials, 168.
    3. The third ground for error is, “ that the court below erred in ruling out the deposition of Francis P. Beck, offered as evidence on behalf of the plaintiff.”
    The objection made on the trial to the deposition was on the ground of interest on the part of the deponent Beck.
    
      The court clearly erred in not letting in this evidence; but one doubt could arise, and that would not be the admissibility of the evidence, but the credibility of the witness. Greenl. on Ev. (Ed. 1844,) 456, sect. 387; lb. sect. 416 to 420.
    Mere interest in the question would not render the evidence inadmissible. Judge of Probate v. Green, 1 How. 146; Clapp v. Mandeville, 5 lb. 197.
    The facts disclosed by the deposition show that the only interest which the witness could possibly have had in the case at bar was that he might be sued for negligence in this consignment ; this interest then was certainly very remote and not in the event of the suit; for if the plaintiff failed in this action he could not have recovered against Beck or his partner, who were not parties to this proceeding.
    Was this interest, then, if he had any interest in the controversy whatever, vested and certain? If not, the rule of law authorizes the admission of his evidence. See, on this point, Phillips on Ev. 46 — 69; 4 Johns. R. 128; Peake, 171; 1 Starkie, 97; 2 East, 489; 7 Green. 48U ; 2 Mass. 108 ; 1 Bibb, 298.
    What is the fact, however? That the witness was the.factor and agent of the plaintiff; that as consignee he received the boxes, and re-shipped them. Does he not then stand disinterested between the ship-owners and the steamboat ? and in fact as to all parties? If so, he is equally interested; his interest is balanced. If then his interest in the matter was equally balanced, his testimony was competent.
    The case of Austin v. Feamster, 1 S. & M. 166, decides this question as to the competency of witnesses who are equally liable; the same principle is sustained by the following authorities: 3 Dallas, 506; Bailey v. Johnson, 3 Johns. 420; Baring v. Reeder, l Hen. & Mun. 164.
    The witness Beck was nothing more than an agent of the plaintiffs, and if only an agent, his testimony was entirelycom-petent. See the case of Austin v. Feamster, and the cases referred to above.
    But the law-writers go farther, and say, that in order to ex-elude testimony on the ground of interest, such interest must be in the verdict, in the judgment had in the cause, and this certainly is the reasonable and correct rule. There is no use in elaborating the argument on this point, the authorities are numerous. See Wakely v. Hart et al. 6 Bin. 316 ; 1 Yeates, 84; 1 Hay. 2;,4 Mass. 448; 2 Phil. Ev. (Cow. & Hill’s notes,) 92, 98, note 88, 91.
    It may be said that the witness says he believes that he is interested, and therefore his evidence must be refused, but that is not a good reason ; he may believe firmly that he is interested, and yet if he really has no interest, the evidence will not only be competent to go to the jury, but its credibility will not be affected by such belief. Green, on Ev. (ed. 1844.) p. 456, sec. 387, 416 to 420.
    If a judgment had been rendered against the defendant, and the defendant brought an action against Beck, could this judgment be offered as evidence in the cause 1 Certainly not, for a judgment is never evidence in favor of or against a person unless they were parties to it. See Copp v. McDovga.ll, 9 Mass. 1; Perkins v. Pitts, 11 lb. 125 ; 14 lb. 222 ; Shrewsbury v. Boyls-ion, 1 Pick. 105.
    This deposition could not be read in any other case, either for or against Beck; it could affect no other cause but the one in which it was taken. ■ Then upon this point it was competent.
    
      George L. Potter, for defendant in error.
    Neither of the causes assigned for error is a cause to reverse the judgment; they relate to matters to which the bill ofexcep-' tions does not refer; the exception is to the refusal of a new trial, the causes assigned refer to the action of the court at and before the tr.ial, to-the refusal of a continuance, and the ruling out a deposition. Suppose the reasons assigned on the motion for a new trial had been stated in the assignment of errors as specifications why the refusal of a new trial was error, still no error would be shown.
    1. There is nothing to show the verdict was contrary to law or evidence.
    
      2. The refusal of a continuance cannot be assigned for error. The declaration was filed to May term, 1841, the trial was at May term, 1844, yet there was no showing why the deposition had not been taken before, nor any showing that the testimony of the witness was material; the so-called deposition, set out in the bill of exceptions, cannot be regarded as a,n affidavit to show such materiality, for the statement of the witness was not taken under the authority of a commission, and there is nothing to show that Christie was authorized to administer an oath.
    3. The ruling out the statement of Beck was not error. First, because that so-called deposition was not taken pursuant to the statute; there was no commission to authorize Christie to examine Beck. Second, no notice of the time and place of taking it was given to Thomas R. Lee & Co. as had been agreed by the counsel on both sides; the notice alleged to have been given, was to Henry R. Lee & Co. Third, there is nothing to show the interrogatories were ever filed in the clerk’s office; no evidence that the examination was taken by a person authorized to take it and to swear the witness ; nothing to show that this so-called deposition was sealed up and directed or deposited and opened in court as the statute directs. How. & Hutch. 603, § 16, 17.
    4. All the material direct interrogatories are leading questions. The shipment of the goods on board the Baton Rouge was the material fact to be proved; the question to this point is one to which “the answer yes or no would be conclusive;” it was therefore clearly objectionable. 1 Stark. Ev. 150. The other direct interrogatories refer to this, and must fall with it. Under our statutes, this objection may be taken at the trial. How. &• Hutch. 603, § 16.
    5. The witness was interested to subject the defendants to a verdict for the value of the goods. He admits that he received the goods into his possession, as the agent of the plaintiff, and that the goods were then in good order; unless he could show that he delivered the goods in the like good order, he would be liable to the plaintiff; hence his statement that he was interested “ in proving that goods were not taken out of the said boxes whilst in New Orleans.” “ Where a witness is so far*interested in a fact upon which the verdict depends, that if his party failed, and the fact were contrary to his testimony, he would be liable to that party,” he is clearly incompetent. 1 Stark. Ev. 110, et seq.; 1 Green. Ev. § 393, 396, 417. Such an interest does not merely affect his credibility. In this case there is no pretence to say the witness was “disinterested between the parties; ” he was not the agent of, nor would he be liable over to the defendants.
    6. The witness had no recollection that he shipped the boxes, but was induced to swear that he did ship them, because the bill of lading was filled up by him; that is to say, he swore to a mere memorandum. Where a witness so swears, the memorandum itself should be produced and identified. 1 Stark. Ev. 154; 3 Phil. Ev. (Cow. & Hill) 1238; the bill of lading was not produced.
    These defects in the so-called deposition are apparent on the record, and they fully justify the exclusion of that document. As the record does not state the very reasons why this paper was rejected, this court would presume it was properly ruled out; that it was not taken, returned, filed or opened pursuant to statute, or that it was improperly opened out of court; the fact that the learned counsel for the plaintiff, after taking this so-called deposition, found it necessary to file the same interrogatories to retake the testimony of the witness, creates a very strong presumption that this rejected statement was properly refused.
   Mr. Chief Justice ShaRKEy

delivered the opinion of the court.

The plaintiff instituted this suit by attachment against the Steamboat Baton Rouge, (not knowing the name of the master or owner) according to the statute, for damage to three boxes of merchandise, which had been shipped on the boat at New Orleans, directed to the plaintiff at Natchez. The goods, it seems, were originally shipped from New York, and re-shipped at New Orleans. The deposition of the commission merchant who re-shipped the goods, was taken by the plaintiff, bnt ruled out on the trial, and, after verdict for defendant, the plaintiff moved for a new trial, first, because an application for a con» tinuance had been refused, and second, because the deposition was improperly excluded.

An application for a continuance is addressed to the discretion of the court, and if it be refused, cannot generally be assigned as error. But the plaintiff did not make a sufficient showing to entitle him to it.

It does not appear by the record on what ground the deposition of Beck was ruled out; the only light we get on this subject is from the arguments of counsel. It is admitted that a commission issued, and, in connection with this admission, the cross-interrogatories filed by the defendants, would justify a presumption that it was regularly issued. But there was an agreement entered into between the counsel for plaintiff and defendant, which imposed conditions that have not, as it is said, been complied with. By this agreement the counsel of both parties consented that a commission might issue forthwith, without affidavit, and that one day’s notice should be given of the time and place of taking the deposition, to Thomas R. Lee & Co. No. 7, Magazine street, New Orleans. This notice was given to the firm of Henry R. Lee & Co. and one of the firm attended the taking of the deposition. As cross-interrogatories ■had been filed, we see no motive which could have induced the insertion of this condition, unless the firm mentioned had ait interest in the suit. If so it was competent for their counsel to make this provision in their favor. The notice, however, was not given to Thomas R. Lee & Co., but to Henry R. Lee & Co. No doubt proof might have been introduced to show that the latter firm was intended ; that would have left the deposition unobjectionable in this particular. But we cannot know that the notice was required to be given to Henry R. Lee & Co.; there may be a firm in New Orleans under the name of Thomas R. Lee & Co.

But the judgment in this case maybe placed on a ground less questionable. It comes up by bill of exceptions, taken under the statute to the decision of the court, in overruling a motion for a new trial. In such cases the judgment may be reversed, because of the improper ruling of the court below, or because the evidence greatly preponderates against the finding of the jury. To enable us, therefore, to decide properly, the evidence, or the substance of the evidence, ought to be set out in the bill of exceptions, otherwise it is defective. Terry v. Robins, 5 S. & M. 291. In cases brought up in this way, a new trial will not be granted unless it is clear that justice has not been done in the court below. Leflore v. Justice, 1 S. & M. 381; or when it appears that the jury found according to the weight of evidence. Jenkins v. Whitehead, Ibid. 157; or where there is little reason to suppose that a different result would ensue on another trial. Barrenger v. Nesbet, Ibid. 22. The suit is for damage done to the boxes of merchandise, either by the abstraction of part of the goods, or for permitting them to be injured on the passage. This is manifest from the declaration, and from the deposition of Beck. The record contains no proof of the condition of the goods when received. The only evidence set out in the bill of exceptions, is the rejected deposition. Suppose it had been received, would it have produced a different result? It proves nothing, except that six boxes of merchandise were shipped on the Baton Rouge to defendant, at Natchez. It says nothing of the kind or value of the merchandise. How was it possible for this evidence to have justified a verdict for the plaintiff for the amount claimed, or indeed for any amount? There was probably other evidence before the jury, but it is not before us. We must try the verdict by the evidence which is set out in the record, aud even if the deposition had been admitted, we do not see -how it could have changed the result.

Judgment affirmed.

Thachek, J. having been of counsel below, gave no opinion.  