
    Sowell v. Bank of Brewton.
    
      Action on Promissory Note by Assignee Against Mahers.
    
    1. Subscribing witnesses; proof by one sufficient. — It is now the settled doctrine as to deeds or other instruments, operating inter vivos, requiring the attestation of witnesses, to call one of the subscribing witnesses, though the other may be attainable, and, if he proves execution, to admit the instrument in evi- ■ dence.
    2. Agent as attesting witness. — An agent or attorney who represents the payee in the execution and assignment of a promissory note, is a competent attesting witness thereto.
    3. Secondary evidence; when objection made. — An objection to evidence taken by deposition on the ground that it is secondary, should be made at the earliest opportunity; such an objection sprung on the trial, when the deposition is being read in evidence, comes too late.
    4. New -trial; relationship of juror. — The verdict of a jury will not be set aside, and a new trial granted because of the relationship of one of the jurors to the opposite party, unless it is shown affirmatively that the disqualification was unknown to the party moving for a new trial and his counsel when the juror was accepted.
    Appeal from Escambia Circuit Court.
    Tried before Hou. J. R. Tyson.
    The Bank of Brewton brought suit against D. S. Sowell, J. F. McDavid, F. L. McCawley, and G. W. Emmons,- on a promissory - note for $40.00 of- date September 26, 1896, purporting to be signed by defendants, payable to the order of J.' C. Emley, and indorsed as follows : “Pay to the order of Bank of Brewton, without recourse. J. C. Emley. By W. J. Jenkins, Atty.” The note was witnessed by T. J. Donald and W. J. Jenkins. - The defendants interposed a plea of non est factum. The plaintiff introduced in evidence the deposition of W. J. Jenkins, who testified, among other things, that he was a general agent in the employ of J. C. Emley in the sale of Fletcher Emley’s patent fence, that as such agent he had authority to take notes, and to endorse same. That •' the note in suit was given by defendants in the course of his business, was executed in his presence, and-was -witnessed by himself and T. J. Donald. That witness endorsed said note as appears on back thereof. In answer to the 4th cross-interrogatory, witness said his power of attorney from J. C. Emley was in writing. Defendants filed with their cross-interrogatories objections to the testimony of Jenkins, viz: Because he is incompetent, being a party in interest to the note; and because said Donald had not been called and no predicate had been laid showing sufficient cause for not so doing. The objections were renewed on the trial, and overruled by the court. Defendants excepted. While the deposition of said Jenkins was being read in evidence the defendants objected as soon as it appeared by the answer of the witness that his power of attorney from J. C. Emley was in -writing and not attached to the deposition, ancl moved the court to rule out all the testimony relating to such power of attorney, because it was secondary and no predicate laid therefor. The court overruled the objection, and defendants excepted. There was judgment for plaintiff. Defendants made a motion for a new trial on the ground, among others, that one of the jurors, W. H. Strong, trying said cause was related, as a brother-in-law, to one of the stockholders in plaintiff bank. The evidence touching the question is sufficiently stated in the opinion. The court overruled the motion. Defendants excepted. The several rulings of the court above set out are assigned as error.
    Dorison & Smith, for appellants.
    Witness Jenkins stood in the shoes of Emley, was a party in interest, such as would disqualify him as an attesting witness. 3 Brick., p. 440, §§517, 518; Ellison v. State, 69 Ala. 1; 1 Greenleaf on Ev. 569; 3 Am. & Eng. Encyc. of Law, (2d eel.), 274, note 1; Coleman v. State, 79 Ala. 50. That the objection to the evidence as secondary did not come too late; see Goodleit v. Kelly, 74 Ala. 21; Fert. Co. v. Holland, 107 Ala. 412; 62 Ala. 537; M. & C. R. R. Co. v. Maples, 63 Ala. 601.
    Rabb & Leigh, and Norvelle R. Leigh, Jr., contra.
    
    It was sufficient to introduce one of the subscribing witnesses to the notes. The objection to certain testimony as secondary came too late. — McCrary v. Turk, 29 Ala. 244; M. & C. R. R. Co. v. Maples, 65 Ala. 607; Moore v. Robinson, 62 Ala. 537; E. T., V. & G. R. R. Co. v. Turlet/ville, 97 Ala. 122; A. G. S. R. R. Co. v. Baily, 112 Ala. 1(37.
   BRICKELL, C. J.

1. The objections taken in varied forms to the "examination of Jenkins, one of the subscribing -witnesses to the note, to prove its execution, without first calling, or accounting for the absence of the other subscribing Avitness,, were properly OArerruled. It is noAV the settled doctrine as to deeds or other instru-. ments operating inter vivos, requiring the attestation of witnesses, to call one of the subscribing Avitnesses, though the other may be attainable, and if he proves execution, to admit the instrument in evidence. — 1 Greenl. Ev., §569; 1 Whart. Ev., §729; Melchor v. Flanders, 40 N. H. 157. Nor is there any force in the contention that Jenkins had any such relation to the note as disqualified him from attesting its execution. It may be, that a party to an instrument is not a competent attesting witness ; and that his attestation is a nullity, rendering necessary the calling, or accounting for the absence of another attesting Avitness, if there be one, to prove due execution. But Jenkins Avas not a party to the note — it was payable to Emley, and in Emley’s name, by Jenkins, as agent, Avas indorsed to the plaintiff. It is one thing to shy that a party to an instrument is not competent to attest its execution, and quite another to say that his agent or attorney is also incompetent. The mere relation of agency did not disqualify the agent as a Avitness for or against the principal at common laAV, unless he had a certain direct and immediate interest in the event of the suit, or the record of the judgment would be evidence for or against him in a subsequent suit with the principal. — Bean v. Pearsall, 12 Ala. 592; Governor v. Gee, 19 Ala. 199. The statute (Code, 1896, §1794), having removed the common laAv disqualifications of Avitnesses, it would be going very far to pass beyond them and hold an agent or an attorney an incompetent attesting Avitness, contravening a very usual course in the transaction of business.

2. An objection that evidence is secondary, primary or better evidence of the fact proposed to be proved existing, belongs to that class of objections AArhich ought to be made at the earliest opportunity. Such objections are distinguishable from objection directed against the releA-ancy or legality of evidence, it is the duty of the court, on motion, to exclude at any stage of the proceedings, because its infirmities are not capable of being removed. — McCreary v. Turk, 29 Ala. 244; Whilden v. M. & P. Bank, 64 Ala. 31; 1 Brick. Dig. 887, §§1190-97. The reason is, that otherwise many incouveniences may arise to the delay of causes and to the injury of parties. Speaking of an objection, that an answer of a witness testifying by deposition was not responsive to the interrogatories, in McCreary v. Turk, supra, it was said, that if the objection had been made before entering on the trial it could have been removed without hazard or injury to either party. And, further: “Looking at the results which would necessarily attend a practice which would encourage and sustain such objections, when made for the first time on the trial, after an earlier opportunity had been afforded for making them; and bearing in mind that all the rules of evidence are adopted for. practical purposes in the administration of justice, and ought to be so applied as to promote the ends for which they were designed, we hold that such objections are waived, if not made before the trial begins; unless, when made for the first time on the trial, they are accompanied by proof from the party making them that he had no opportunity to make them at an earlier period.” On the cross-examination of Jenkins (his testimony having been taken by deposition), he stated that.the power of attorney given him by Emley ivas in writing, having previously testified to the nature and extent of his authority. If he had been examined orally, in open court, the objection that his testimony ivas secondary not primary ■ — -that the power of attorney ivas the higher evidence— must have been taken at the time the evidence was given, and the failure then to object, would, have been a' waiver of its inferiority. The cases are numerous in which parties have been concluded by secondary evidence not objected to in due time. — I Brick. Dig. 848, §635. The defendants suffered the plaintiff to enter on the trial relying on this evidence, having opportunity to object to its admissibility, but raised no objection until the deposition was being read. We hold that the objection came too late — that it could not be sprung on the trial, to the delay of the cause or at the hazard of greater injury to the plaintiff.

3. If there be any merit in the motion for a new trial, it is contained in the ground that Strong was disqualified as a juror, because he was the brother-in-law of one of the shareholders of the plaintiff bank. If it be conceded that the relationship disqualified the juror (a question we need not decide), it is apparent, we are of the opinion, that it was known to one of the counsel of the defendants when the juror was accepted, though it may have escaped his memory. The verdict of a jury will not be set aside, and a neiv trial granted, unless it be shown affirmatively that the disqualification was unknown to the party moving for the new trial and his counsel, when the juror was accepted. — Rollins v. Ames, 9 Am. Dec. 79, and note; Cannon v. Bullock, 26 Ga. 431; Hilliard on New Trials, 181; 2 Graham & Waterman on New Trials, 474.

We find no error in the record, and the judgment must be affirmed.  