
    John Routh vs. The President, Directors and Company of the Agricultural Bank of the State of Mississippi.
    General objections made to the admission of documentory evidence, overruled in the court below, are entitled to but little consideration in the high court of errors and appeals ; for it often happens that if specific objections had been made upon the trial below, they might have been removed or obviated by other testimony.
    Upon a trial in the circuit court, the plaintiff after notice to the defendant to produce a power of attorney, executed by him and his failure to do so, offered what purported to be a copy of a power of attorney, executed by the defendant, and the certificate of the notary in Louisiana, before whom it was executed, of its execution, with the governor of Louisiana’s certificate of the official character of the notary ; the whole being certified by another notary to be “ true copies of the original power of attorney, and governor’s certificate annexed to an act of deposit of said documents passed before him (the notary) ; ” to which last certificate was appended the certificate of the governor of Louisiana to the notarial character of the officer, and that he was the proper officer to certify the instrument annexed, and that his attestation was in due form, &c.; held, that the governor’s certificate of the character and attestation of the last notary certifying, was prima facie evidence that the instrument offered in evidence was an exemplification ot record by the laws of Louisiana, to be kept in a public office of that state, not appertaining to a court; and it was incumbent on the opposite party to produce the original, and show it was not recorded or the law which dispensed with that ceremony.
    A general power of attorney, executed in Louisiana, by a citizen of that state to a citizen of Mississippi, without limit as to place or time, where, or for how long it is to be used, empowers the attorney to act under it in the state of Mississippi; and if the person executing the power of attorney, wishes any advantage from any alleged difference in the law of Louisiana and this state, as to the construction and use of such power of attorney, when its exercise is called in question in this state, he must produce the law of Louisiana, and show that the person in this state, who is seeking to establish the authority of the attorney to use the power of attorney, knew of such law of Louisiana, limiting such power.
    Where a general power of attorney is given, by which the attorney is authorized to sign the name of the principal, and on its face it is unlimited ; if the principal seek to avoid an exercise of the power in the state of Mississippi, by the attorney, on the ground that the attorney was limited in its use to the state of Louisiana, and had no authority to use it in Mississippi; he must show that the person contracting with the attorney, knew the limitation upon the attorney’s power.
    It seems that, under the law of Louisiana, when a power of attorney has been executed before a notary, and lodged with him for safe keeping, when a certificate, of such deposit is given by the notary, the power of attorney becomes a part of the public papers of his office, and cannot be withdrawn ; copies therefore duly certified of such power, are evidence as well in this state, as in Louisiana.
    
      The Agricultural Bank sued R., as maker of a note, jointly with F.; R. plead non est factum, with an affidavit attached, that his name had been signed by F. to the note, and that F. only had authority to sign his name to notes which were for his (R.’s) own benefit, and that the power conferring this authority on F. was known to, and lodged with the plaintiffs, and was the only authority, under which the plaintiff received F.’s signature of his name ; that the note sued on was exclusively for F.’s benefit; that though he had given F. a general power to use his name, it was given solely to be used in Louisiana. On the trial, the plaintiff introduced a copy of this general power, dated in 1837, taken from the records in Louisiana, by which R. authorized F. to sign his name without any limitation ; in defence, R. introduced a special power from himself to F., to use his name only in njatters in which he was interested ; and read also an agreement between himself and the plaintiffs, of the same date, with this special power, reciting and confirming its use ; and proved by the cashier of the bank, that so far as he knew, the bank, at the date and discount of the note sued on, acted upon the special power of attorney, but he did not know whether the bank knew of the other power of attorney, or what influenced the directory to discount the note, and that F. received the proceeds of the discount, and not R. ; there was no proof that the bank knew of the alleged limit on F.’s authority, to use the general power in the state of Louisiana only; the jury found for the plaintiff the full amount of the note ; held, that the verdict was right.
    A person, whose wife is a stockholder in a bank, is not a competent witness for the bank, in a suit by the latter, to recover the amount of a note, payable to and discounted by it.
    Where improper testimony is allowed by the court below, that should have been excluded, yet which was merely cumulative, and the exclusion of which w'ould not have changed the result of the trial, and would not change the result upon another trial, the high court of errors and appeals will not, on account of its admission, reverse the judgment.
    In error from the circuit court of Adams county; Hon. C. C. Cage, judge. '
    On the 18th of April, 1842, the president, directors, and company of the Agricultural Bank sued William Ferriday and Henry L. Bennett, surviving partners of Shipp, Ferriday & Co., John Routh, and Austin Williams, as joint makers of several notes, amounting in the aggregate to nearly one hundred thousand dollars.
    As the suit was subsequently discontinued as to Ferriday, Bennett, and Williams, it is not deemed necessary to notice the pleadings and progress of the case as to them.
    
      Routh, besides the plea of non-assumpsit, plead as follows, to wit:
    “ And for a further plea in this behalf, this defendant says, that he did not make and execute the said promissory notes as either set forth in the plaintiff’s declaration in manner and form as therein set forth, and this he prays may be inquired of by the country, &c.
    ■ Quitman and McMukiun,
    Maxwell and WalkeR, att’ys for Routh.
    
      “ And the said John Routh in support of his said pleas saith, that the signature of this defendant was affixed to said promissory notes by William Ferriday, professing to act as attorney of this defendant, under and by virtue of a written power of attorney in possession of said plaintiffs, authorizing said Ferriday to sign the name of this defendant in transactions with said Agricultural Bank for the benefit of this defendant; which power of attorney this defendant is advised, and believes, did not authorize, in any manner, said Ferriday to sign the name of this defendant in any manner, except for the use or benefit of this defendant, or in the concerns of this defendant with said bank; that said notes sued on in this action were not made or given to said plaintiffs for the use or benefit of this defendant, or in arrangement of any of the business of this defendant with said bank, but solely for the benefit of said Ferriday, as the commercial firm of Shipp, Ferriday & Co., in which said Ferriday was a partner, and in which he was interested; and said notes sued were received and discounted by said plaintiffs with full knowledge that they were not applied, or to be applied, used, or discounted for the use or benefit of this defendant, or in the business or transactions of this defendant with said bank; that said written power was lodged with said plaintiffs and remained in their possession, and constituted the only authority under which said plaintiffs received the signature of said Ferriday for this defendant upon said notes sued on; that although this defendant had also executed, in the state of Louisiana, to said Ferriday a general power to sign the name of this defendant, the same was given solely to be used in the city of New Orleans, and not elsewhere. Nor were the bills sued on, discounted by said plaintiffs upon the faith of any authority possessed by said Ferriday, except the said power of attorney given and lodged with the the said plaintiffs as aforesaid. Wherefore, this defendant says that he is advised, and believes, that said Ferriday had no authority to affix the value of this to said notes, and this defendant denies, that executed the same, <fcc,
    John Routh.
    “Sworn to and subscribed before me this 15th December, 1842.
    Samuel Wood, Clerk.
    By James D. Galbraith, Deputy Clerk.”
    On which pleas issues were taken. On the trial, had at the November term, 1842, the plaintiffs offered to read in evidence to the jury the following instruments'of writing, with their certificates, having previously notified the defendant to produce the original, to wit:
    “ State of Louisiana, Parish of Concordia.
    
    
      “ Know all men by these presents, that I, John Routh, of the parish of Concordia, and state of Louisiana, have made, ordained, constituted, and appointed, and by these presents do make, ordain, constitute, and appoint William Ferriday, of the city of Natchez, state of Mississippi, to be my true and lawful agent, and attorney', in fact, general and special, giving, and by these presents granting unto my said attorney full power and authority for me, and in my name, or in the name and for the use and benefit of him, my said attorney, or for the use and benefit of, or in the name or names of any other person or persons whatsoever, to make, indorse, draw, accept, and negotiate all promissory notes, bills of exchanges, drafts, and other securities of any and every kind whatsoever. To issue letters of credit, to transact all banking business, to make all manner of renewals and in-dorsements of my name on all promissory notes, bills of exchange, drafts, or other securities of any kind whatsoever, consequent, or in any wise appertaining to such renewals, whether the same be payable to me or to my said attorney, or, to any other person or persons, or corporation, or company whatsoever, and generally to do all lawful acts and things whatsoever, concerning, or in any wise appertaining to the premises, as I might or could do, if I was personally present and acting therein, and any attorney or attorneys under him, for any or all the purposes aforesaid, to make, and at his pleasure, to remove or displace; hereby ratifying, allowing, and confirming all and whatsoever my said attorney in fact, shall in my name legally do, or cause to be done in and about the premises, by virtue of this act of procuration, which is to be taken and understood in its fullest and most comprehensive sense and construction.
    “ In witness whereof, I have hereunto set my hand and seal, at the parish of Concordia, state of Louisiana, on the twenty-ninth day of November, one thousand eight hundred and thirty-seven.
    John Routh, [Seal.]
    “Signed, sealed, and delivered in the presence of
    Thomas Alexander,
    Edward Sparrow.”
    “ State of Louisiana, Parish of Concordia.
    
    “ I, William L. Poindexter, a notary public in and for the parish of Concordia, in said state, duly commissioned and qualified, do hereby certify and attest unto all whom it may concern, that the foregoing power of attorney was duly signed and sealed by John Routh, in the presence of Thomas Alexander and Edward Sparrow, witnesses.
    “ To the due execution thereof an act being requested, I have granted the same, under my notarial form and seal of office, to serve and avail as occasion shall or may require.
    “Done and passed at my office, in the town of Yidalia, this twenty-ninth of November, eighteen hundred and thirty-seven.
    [Seal.] William L. Poindexter, Not. Pub.”
    “ United States of America, State of Louisiana. ■
    
    “ By Edward D. White, governor of the state of Louisiana.
    “These are to certify, that William L. Poindexter, whose name is subscribed to the instrument of writing herein annexed, is now, and was at the time of signing the same, a notary public, in and for the parish of Concordia, and that all his official acts as such are entitled to full faith and credit.
    “ Given at New Orleans, under my hand and seal of the state, this second day of December, one thousand eight hundred and thirty-seven, and of the independence of the United States the sixty-second.
    
      “ By the governor. d. White.
    [Seal.] MaRtin Blache, secretary of state.”
    “I certify the foregoing to be true copies of the original power of attorney and governor’s certificate annexed to an act of deposit of said documents passed before me on the second day of December, eighteen hundred and thirty-seven.
    “ In faith whereof I grant these presents, under my signature and the impress of my seal of office at New Orleans, this thirteenth day of December, one thousand eight hundred and forty - two.
    [Seal.] H. B. Cenas, Not. Pub.” •
    
      “ United States of America, State of Louisiana.
    
    “By A. B. Roman, governor of the state of Louisiana.
    
      “ These are to certify, that H. B. Cenas, whose name is subscribed to the instrument of writing herein annexed, is now, and was at the time of signing the same, a notary public, in and for the parish and city of New Orleans, state of.Louisiana; that his signature is genuine, and that the said Hilary B. Cenas is the proper officer to certify the instrument herewith annexed, and that the attestation is in due form of law.
    
      “ Given at New Orleans, under my hand and the seal of the state, this thirteenth day of December, one thousand eight hundred and forty-two, and of the independence of the United States, the sixty-seventh.
    “ By the governor. A- R Roman-
    [Seal.] Levi Levin, secretary of state.”
    The defendants objected to their introduction, but the objection was overruled.
    
      The plaintiff then offered to read the notes' sued on, one of which was in these words, viz.:
    “$50,000. Natchez, Aug. 24, 1839.
    
      “On the twenty-fourth day of August, A. D. eighteen hundred and forty, we, or either of us, promise to pay, without defalcation, to the order of the president, directors, and company of the Agricultural Bank of Mississippi, for value received, fifty thousand dollars, payable and negotiable at their banking house, in Natchez. Renewable.
    Shipp, Ferriday & Co. in liquidation,
    John Routh, by his attorney, Wm. Ferriday,
    Austin Williams, by his attorney, Wm. Ferriday.”
    The other notes were of similar form. The defendants objected to their introduction, but the objection was overruled, and exceptions sealed.
    The defendants then read the following power of attorney, the same being produced by the plaintiffs, on notice to that effect, to wit:
    “Know all men by these presents, that I, John Routh, of Adams county and state of Mississippi, have constituted and appointed, and by these presents do hereby constitute and appoint, William Ferriday, D. C. Miller, and John Boynton my true and lawful attorneys, for me, and in my name and behalf, to transact the following in and with the Agricultural Bank of Mississippi, in Natchez, viz: to sell and transfer any stock standing, or which hereafter may stand in m.y name on the books of said institution, to receive and sign receipts for all dividends now due, or which may grow due on the stock as aforesaid; to deposit money in' the said institution, and to draw checks in my name; to lodge promissory notes, bills of exchange, and other obligations for collection, and to withdraw the same at discretion; to borrow money, and to contract with the said institution in my name, whether on promissory notes, bills of exchange, or obligations drawn in my favor, or drawn in favor of any other person or persons, without limit as to the amount; and to receive and acknowledge notices of protest of all or any bills of exchange, drafts or promissory notes; and to do and perform all such other acts as may be necessary in transacting my business with said institution ; finally, empowering the institution as aforesaid to receive my said attorney’s signature for me, on all bills of exchange or drafts, as drawer, indorser, or acceptor, and on all promissory notes, or other obligations, as maker or indorser; hereby binding my heirs and assigns to all the acts of my said attorney touching the premises, as fully as were I personally present, or were the signatures in my own proper handwriting.
    “ In witness whereof I have hereunto set my hand and seal. Done at Natchez, this 14th day of April, 1834.
    Witness, John Routh. [Seal.]
    A. M. Griffin,
    D. H. Tenpin.’’
    Also the following agreement:
    
      “ Agreement between John Routh, of Adams county, state of Mississippi, and the president, directors and company of the Agricultural Bank of Mississippi.
    “I, above named, have given a power of attorney to William Ferriday, D. C. Miller, and John Boynton, dated the 4th day of April, 1834, to draw and indorse promissory notes and bills of exchange, and for other purposes; it is hereby agreed by and between the said John Routh and the president, directors and company of the Agricultural Bank of Mississippi, that the signature of the said John Routh, by his said attorney, on bills of exchange or drafts, as drawer, indorser, or acceptor, and on all promissory notes, checks, or other obligations, as maker or indorser, shall be good and available against him the said John Routh, his heirs, executors, and administrators, notwithstanding the revocation of said power, express or implied, by death- or otherwise, until notice thereof shall be given to the president, directors and company of the Agricultural Bank of Mississippi. And I, the said John Routh, do hereby covenant and agree with the president, directors and company of the Agricultural Bank of Mississippi, that I, the said John Routh, my heirs, executors and administrators shall, and will, pay all such notes, bills of exchange, or other obligations signed and indorsed, before notice as aforesaid, notwithstanding such revocation or determination of the power, as fully as if the same had been indorsed or signed while the power was in full force; and will fully indemnify and keep harmless the president, directors and company of the Agricultural Bank of Mississippi.
    “ In witness whereof, the said John Routh has hereunto set his hand and seal the 4th day of April, 1834.
    John Routh.
    “Signed, sealed and delivered in presence of
    A. M. GRIFFIN,
    D. H. Tenpin.”
    Ayres P. Merrill, for defendant, proved that he was cashier of the plaintiffs at the time the notes sued on were discounted, and that the power of attorney of April 4, 1834, was held by the plaintiffs from its date until that time, and the plaintiffs acted on it as Ferriday’s authority to affix the signature of Routh to ■the notes sued on, as far as he knew; he did not know what might have operated on the directors’ minds in discounting the notes sued on; he knew of no other authority to Ferriday to sign Routh’s name, than the one held by the bank; the notes sued on were all discounted by the plaintiffs, and the proceeds applied to the discharge of the liabilities of Shipp, Ferriday & Co. to the plaintiffs.
    This was all the evidence. The jury found for the defendants. Routh & Williams, (as to the latter of whom there was the same testimony before the jury as to Routh,) the plaintiffs, moved for a new trial, because the verdict was against law and evidence; it was granted by the court below, and the defendant embodied the evidence in a bill of exceptions thereto.
    On the 5th of December, 1843, a second trial was had, at which, after proving that all the signatures to the notes sued on were in the handwriting of William Ferriday, the plaintiffs offered the deposition of William L. Poindexter, who testified, that on the 29th of November, 1837, Routh appeared before him, a notary public, duly appointed for the parish of Concordia, in the state of Louisiana, and executed a power of. attorney to William Ferriday, to the original of which he affixed his notarial certificate of the appearance and execution of the power. This original was deposited with H. B. Cenas, a notary public in the city of New Orleans; he had demanded the originals of the notary for the use of the plaintiffs in this suit, but the notary refused to deliver them for the reason that they formed a part of his notarial records, and could not be taken from his office. That he has an authentic copy, which he files with and makes part of his deposition of the power of attorney of Routh, executed as stated, which he had compared with the original in the office of Cenas; and it was the same executed by Routh before the witness.
    This copy, with the certificates, is the same identically with the one set out in the first bill of exceptions, except the governors’ certificates.
    It was admitted that Sparrow and Alexander, the witnesses to the power of attorney, and Poindexter the deponent, were citizens of Louisiana. The court, notwithstanding the objection of the defendants, admitted the- evidence of Poindexter, the power of attorney, and the notes sued on, and the plaintiffs closed their case.
    The defendants then proved that the firm of Shipp, Ferriday & Co. consisted of William Ferriday, William Shipp, William Bullitt, and Henry L. Bennett; and that Shipp died in 1834, Bullitt in 1835.
    The defendant then read the power of attorney of agreement of the 4th of April, 1834, as already set out and proved by Ayres P. Merrill, in addition to the proof made on the first trial, that he was present with the board of directors when they discounted the notes sued on; the power of attorney of April, 1834, was on their table, and he believes was the only authority the plaintiffs then had for receiving the signature of the defendant Routh.
    On cross-examination he stated, that the notes sued on were executed in renewal of others of Shipp, Ferriday & Co.; that Routh’s name was upon it, signed by Ferriday as agent. The following letter he stated to be signed by Williams & Routh; the body of it was in the handwriting of Ferriday, viz:
    
      “ Natchez, 7th March, 1838.
    
      “ William Ferriday,
    “ Sir, — A remark in the report of the commissioner, relative to the affairs of the Agricultural Bank being calculated to induce the belief on the public mind, that you have used our names as indorsers, under our power of attorney, to an extent not known to us; we hereby state that the use of our names on your paper, or that of your firms, has had and now has our entire approbation and consent; and that we are and have been fully aware of the extent of our liabilities on that account.
    We are Sir, yours, truly,
    Austin Williams,
    John Routh.”
    That this letter was published by William Ferriday, with comments, in the Natchez Free Trader, about the time of the date of the letter; this publication of Ferriday’s was also read to the jury. The witness and several of the directors of the bank had seen this publication and letter when they were made.
    Stephen Duncan was then introduced as a witness by the plaintiffs, and being sworn on his voir dire, stated that his wife owned stock in the Agricultural Bank, which had been transferred to her within the last eighteen months, as one of the distributees of her mother’s estate; he had always considered it as the separate property of his wife, but there was no marriage contract of ante-nuptial agreement, or any other agreement, by which the stock was secured to his wife as her separate property, but he of his own free will had chosen to consider it as hers, never intermeddled with it, and had not claimed or intended to claim it or receive any dividend from it, and at his death it would remain with her, and not go to his children. The court below, the defendant objecting, admitted Duncan as a witness; he proved that Routh had admitted to him his liabilities to the plaintiffs as surely for Shipp, Ferriday & Co., and expressed his intention to pay them, &c.
    
      William Ferriday, as to whom the plaintiff’s action was discontinued, and who had been discharged as a bankrupt, was offered as a witness for plaintiff, objected to and admitted. He proved that the notes sued on were executed to take up liabilities of Shipp, Ferriday & Co., on which Routh was surety; and that Routh had had from the first full knowledge of this use of his name, &c., and never objected to it, and knew also who composed the firm, and when the other partner died.
    The court below refused to let him answer whether or not the power of attorney executed in Louisiana was granted to him only to be used in that state.
    This being all the testimony, the plaintiffs asked the court to instruct the jury as follows, viz.:
    1. If defendants show that Shipp & Bullitt were dead before the notes were made, they cannot set that up to avoid the note.
    2. If Ferriday & Bennett were in the habit of signing the firm’s name, it bound them; and Routh & Williams, becoming surety with a knowledge of the fact, were bound also.
    3. It was not necessary to prove that plaintiffs ever saw the powers of attorney executed in Louisiana.
    4. These powers were sufficient to bind defendant, whether they were known to the bank or not.
    5. If defendants gave the powers, and these powers gave Ferriday power to sign their names, the jury must find for plaintiffs.
    6. The acknowledgment that they knew the extent of their liability, was sufficient evidence that they did know it.
    7. If Ferriday had competent power, it is immaterial that there were insufficient powers in possession of plaintiffs.
    These instructions were given and exceptions taken.
    The defendants asked these instructions.
    1. If Ferriday signed the name of Routh in virtue of the powers dated 4th April, 1839, and the plaintiffs received the signature alone by virtue of said powers, and said notes were taken in' discharge of the liabilities of Shipp, Ferriday & Co. to plaintiffs, and did not relate to the business of Routh, the plaintiffs cannot recover.
    
      2. That the powers of attorney made in Louisiana are void, and not sufficient to authorize Ferriday to sign defendant’s name.
    3. That if the partnership of Shipp, Ferriday & Co. did not exist at the date of the note sued on, and that Williams Sc Routh' are only sureties for Shipp, Ferriday Sc Co. on said notes, they are not liable.
    4. That if two of the members of the firm were dead, the partnership was dissolved, and the survivors had not authority to sign the firm’s name; and if Routh Sc Williams’s names were signed merely as sureties for Shipp, Ferriday & Co., they were not bound.
    All of which were refused and exceptions taken.
    Routh & Williams sued out a writ of error, which was after-wards dismissed as to Williams.
    
      J. B. Maxwell, and Quitman, and McMurran, for plaintiff in error,
    contended,
    I. That if the first verdict was right, and the new trial improperly granted, the last verdict should be set aside and the parties left to their condition on the first verdict. Act of 1830; How. & Hutch. 493; Wood v. Am. Life Ins. Sc Trust Co., 7 How. 609.
    II. That the new trial ought not to have been granted. On this point they argued,
    1. That the court erred in permitting the copy of the power of attorney to go in evidence to the jury without any attempt to account for the loss or absence of the original, or diligence to get it produced. The power was not in Routh’s possession; it was not properly his paper; it belonged to Ferriday, and no attempt was shown to procure it from him.
    2. If the court admitted the copy on the ground that it was duly authenticated under the act of Congress, it was error; as, 1. The power of attorney was not an instrument of such dignity and character that it could be proved by copy under the act of Congress. Torrey v. Filler, 1 Mass. 524; How. & Hutch. 791, 792. 2. The copy does not purport to be made by any one who has a right by law to give a copy that may be receipted in lieu of the original. 3. It no where appears in the first bill of exception that Mr. Cenas, who certifies this copy, is the keeper of the original. 4. It does not appear that the original ever existed, as Mr. Cenas does not pretend to have seen it executed. 5. Poindexter was the notary before the original purports to have been made; it is not shown what connection Cenas has with 'it, except that it was deposited with him, (the inference is a fair one,) for safe keeping. Marie Louise v. Cauchoix, 11 Martin, Louis. R. 243, and cases cited.
    3. Even if this copy was evidence, proof of the import and force and effect of the power of attorney in Louisiana should have been offered before it was received as proof of agency in Ferriday. Melan v. Fitzjames, 1 Bos. <fc Pull. 140; l P. Wms. 431; Cowp. 174; Story, Confl. Laws, 261, 263, 282, 298; 1 Met. 82; 8 Pet. 73; 9 lb. 622; 6 Cranch, 38; 2 lb. 787.
    4. The testimony of Merrill shows that the notes were executed under the special power of attorney, which must be strictly pursued; and the bank knowing both principal and agent, and crediting the agent, as appears to have been the case here, cannot resort to the principal. Patterson v. Gandesequi, 15 East, 62; Addison v. Same, 4 Taunt. 574.
    5. The notes were in the partnership, name of Shipp, Fer-riday & Co., two of the members of which were dead when the note was made; the note was then void. Lamb v. Saltus, cited 1 Nott & McCord, 561; Foltz v. Pourie, 2 Dess. 40 ; Sandford v. Mickles, 4 John. 224; Marlin v. Walton, 1 McCord, 16; 1 Hill, R. 572; H. Black. 155; Bell v. Morrison, 1 Pet. R. 351. Being void as to the principals, the note was void as to the surety. Theo. Prin. & Surety, 3.
    6. The verdict was not against weight of evidence, nor was there any valid reason offered why it should be set aside; it ought to stand: 1 Term R. 84; 2 lb. 113; 2 Stra. 1106, 1142.
    III. The second verdict they contended was incorrect, for many reasons which applied to the first; and they further argued,
    
      1. Sworn copies were but copies, and not evidence, unless it was in proof by the laws of Louisiana that the originals were in the custody of a “public depositary.” Owings v. Hull, 9 Pet. 626.
    2. The fact that Cenas is a notary public does not constitute him the keeper of the original power; it is only the protest of foreign bills of exchange that carries with it evidence proprio vigore. Philips v. Flint, 3 Lou. R. 149.
    3. No legal attempt was made to procure the originals of Cenas.
    4. A power of attorney making A. the agent of B. in Louisiana, does not make him so in Mississippi. The fact that one power wa's executed for Mississippi, and another for Louisiana, shows that they were designed to be united to each state; while Merrill’s testimony proves that the Mississippi power was the one under which the liability was created and received, by it it should be judged.
    5. The deposit of the special power with plaintiffs, and its remaining with them and being used by them, is evidence that the general power was not designed to be used in contracts with the bank.
    6. Duncan was an incompetent witness. He was directly interested in the event of the suit.,
    7. The letter of Routh & Williams was improperly admitted in evidence; it was written one year before the liability was incurred.
    8. Ferriday'was an incompetent witness; though declared a bankrupt, he had not released the benefit of any surplus that might be in his assignee’s hands.
    9. The question as to the limitation on the use of this power of attorney, should have been allowed to be put to Ferriday. It could not prejudice the plaintiffs to prove a limitation on it, as they did not contract with reference to it or knowledge of it.
    10. Upon a fair construction of the so-called power of attorney in Louisiana, it will be found to be but an unlimited letter of credit, and Routh should have had notice of all debts contracted under it to bind him. Russell v. Clark, 7 Cranch, 69; 13 Mass.’ 181.
    
      
      Montgomery and Boyd, for defendants in error.
    1. The power of attorney was certified according to the laws of Louisiana, and was in the nature of public or authentic acts, according to the law of Louisiana. Civ. Code, art. 2239; lb. art. 2231; lb. art. 2961.
    This document comes within the provisions of our statute, and was properly admitted. Hutch. Code, 864, latter clause of art. 2. But if the word state in this statute does not mean one of the states of the Union, as will be contended, still we insist that these copies are evidence under the act of congress. 2 U. S. Stat. at Large, 298.
    But as the verdict on that trial was in favor of the party reserving the exception, it ceases to be of importance. What order or judgment can the court now give if it sustains the objection 1 The party has received all the court could give him, a second trial freed from the irregular evidence of which he complains.
    2.'If, from the evidence before the jury, the verdict was right, it ought to stand ; but it is not competent to withdraw a part of the evidence, because it was wrongfully permitted to go to the jury, and uphold the verdict, on the ground that it would have been right if the illegal evidence had been excluded. How can this court know that other sufficient evidence would not have been produced if the illegal had been excluded 7
    3. The substance of the defence, on the first trial, seems to be that the bank officers had possession of certain special powers of attorney, which did not authorize the use of the constituent’s name in the case, which they probably thought were sufficient, and may have believed were the only powers; and therefore they are not at liberty to invoke the aid of other powers which were in existence, and all-sufficient to authorize the use which was made of the names of defendants.
    A sufficient power will even be inferred from the acquiescence of the constituent in the acts of the agent, which clearly transcend the scope of his original powers. Wilkins v. Commercial Bank, 6 How. 220; Dunlap’s Paley’s Agency, 171, notes 1, 2.
    4. But Routh’s power of attorney, deposited in the bank, had been revoked, and he subsequently, by written agreement, ratified the act of his agent. These notes were given subsequent to this agreement, and therefore could not have been received in virtue of either the powers which were in bank, or included in the ratification. They were received in virtue of the general powers, either upon the faith of Perriday’s respectability, or from a knowledge of the directors, that he had other authority.
    The testimony of Merrill does not disprove the existence of other powers, or the ignorance of their existence among the directors, but merely his own state of mind, and the belief that the powers deposited in bank were regarded as the authority of the agent.
    5. The notion that these general powers were to be exercised only in Louisiana is not tenable. The language shows they were intended for universal use. The agent resided in this state, and the business to be transacted was spread all over the world.
    6. Was the copy of the power of attorney properly admitted at the second trial? It did not belong to the plaintiffs, although they have given credit on the faith of it. Being general powers, in which numerous persons and corporations are or may be interested, the agent, under ordinary circumstances, would be the proper keeper; but as they have been, either for convenience or in accordance with the laws of another state, deposited with a private individual, or public officer, and are not subject to the control of the party interested in using them, secondary evidence is admissible. Phil. Evid. Cow. & H. ed. note, 1215; 3 Mon. Rep. 532; 7 Pick. R. 10; 9 Cow. R. 115; 1 Port. R. 131; 6 Peters, R. 352; 13 Johns. R. 58; 1 Phil. Ev. 436, 439, 440, note to Cow. & H. ed., 832; lb. note, 1214, 458, 461; also notes 1046-1048 ; 6 Carr. & Payne, 206; 25 Eng. Com. Law R. 358; 1 Stark. Evid. 167.
    7. Dr. Duncan was a competent witness. The only interest he could have, was the right to the income, but there was no evidence there was any income or dividends, and profits are not matters of course; and if there were any, he disclaims them. Hence, he had no interest in the event of the suit, and it is too late to make other objections to his being sworn. The party must be confined to the record; if the objection had been taken, that his wife was interested, and from public policy, he ought not to be allowed to testify in a case in which she had an interest, it would have presented a different subject for consideration, and the party offering the witness might have withdrawn him, rather than risk the question. As that objection was not made, it must be considered as waived. The record shows that another witness proved the same facts, to wit, Ferriday, and if the objection had been stated, Duncan would have been withdrawn, rather than risk the question.
    8. Ferriday was admitted to be a certificated bankrupt, and the suit'as to him was dismissed. This was not a case in which the bankrupt’s estate was involved in any way. His discharge rendered him competent. Murray v. Marsh, 2 Hay w. 290.
    9. Ferriday was asked by defendants, if the general powers were not given to be used in Louisiana, to which plaintiffs objected. It certainly cannot be necessary to read authorities to show that written instruments must speak for themselves, and parol evidence cannot be admitted to enlarge, vary, explain, or limit them.
    10. The first and second instruction, that if defendants knew that Shipp and Bullitt, of the firm of Shipp, Ferriday & Co., were dead before the notes were made, they could not set that up to avoid the notes, was correct.
    The notes bound the survivors at least, for Ferriday proves that Bennett and himself were in the habit of using the firm’s name, and Routh & Williams knew that fact, and consequently were the sureties in fact of Ferriday <fc Bennett; that Ferriday & Bennett were bound, &c. 3 Mont. & Ay. 87.
    11. As to the third instruction, that it was not necessary that plaintiffs ever saw the general powers, &c.; the parties had a right to take Ferriday’s word that he had power, or to take it for granted he had them, from his presuming to exercise them ; and when they claim to enforce contracts made with him, it is only necessary to show that he was in fact authorized, without showing that the party took the precaution in the first instance to require proof of his power.
    
      12. As to the instructions asked for defendants below and refused, the refusal was correct.
    1st. It cannot be important to the validity of a contract, that the parties should have their minds fixed on the facts which were necessary to give validity to it. What odds can it make in law or morals, whether the parties acted on the faith of one power of attorney or the others if one of the powers gave authority to do the act 1
    
    2d. We cannot conceive what circumstance is relied on to show that the powers executed in Louisiana are void.
    3d. It was shown in proof that Ferriday <fc Bennett, respectively, used the name, Shipp, Ferriday & Co. in their business, and that Routh knew they were the only members living; hence, it would have been an error of fact, to tell the jury that Routh & Williams were sureties for Shipp, Ferriday & Co.
    ' 4th. This is of the same nature; both the third and fourth instructions were mere abstract questions, not applicable to the case before the court, if true. Although it was proved by Buckner, that the firm of Shipp, Ferriday & Co. originally consisted of Shipp, Ferriday, Bennett & Bullitt, yet it was proved by Ferriday, that himself and Bennett had conducted business under the same firm name since the death of Shipp and Bullitt.
    But we do not admit the doctrine contended for in these third and fourth instructions. If a person becomes surety for a firm, and one of the partners use it for his private purposes, it does not bind the firm, nor the surety, but that is on the ground of fraud, in which the holder participated.
    Although it may be true, that a surety is not bound when the principal is not, that rule does not apply, because the principals were bound. Who were the principals 1 Ferriday & Bennett; and the sureties knew they were the persons bound by the notes.
    Eustis, on same side.
    1. I would call the attention of the court to the affidavit of John Routh, in support of his plea of non est factum, in which he says, “that he had also executed, iii the state of Louisiana to said Ferriday, a general power to sign the name of this defendant.”
    In other words, Routh thus admits upon the record, that his attorney had full power to bind him in any bank any where, but maintains that it was the intention and understanding of the parties, dehors the instrument, that it was only to be used in New Orleans. It may be that signing Routh’s name elsewhere than in New Orleans, was a breach of the confidence reposed by the principal in the agent, but if the agént had the power, it is enough for us. The reckless use of the power will not render void acts which that power authorized the agent to perform. Story on Agency, § 128.
    With this admission in the record, by the defendant, that Fer-riday had a general power to sign his name, and there being no proof that the bank knew that this general power was given, as he alleges, to be used in New Orleans only; and there being neither allegation nor proof on the part of the defendant that the power was restricted in its authority to New Orleans, or to any other place; what necessity was there, that the plaintiff in the court below should produce any other evidence of the right of Ferriday to sign the name of Routh to the notes in question 1
    It was right to set this first verdict aside,
    1st. Because it was against the admission of the defendant himself in the record.
    2d. Because if, upon reflection, the court was of opinion that the copies were not competent testimony, it was but common justice to set aside the verdict; for had these copies been ruled out, better evidence might have been offered.
    3d. If the copies were properly admitted, as we contend they 'were, the verdict was against this accumulated evidence of power in the agent.
    And in order to show what such a power of attorney is, under the laws of Louisiana, and that it is one of those instruments which may be proved by certificate of the keeper, under the act of Congress, we ask the attention of the court to the memorandum of authorities which accompanies this, furnished'by one who understands the jurisprudence of Louisiana better than we profess to do.
    4th. If it is possible that the intention of the grantor not expressed in the instrument, can restrict a general power of attorney, then the same intention, although not expressed in the instrument, may be invoked by us in aid of the special powers which were lodged with the bank, to enlarge them.
    It was the intention of Routh, in making those special powers, to lend his name to Shipp, Ferriday & Co., to authorize the indorsement of his name by Ferriday upon notes of the character of those sued on. This is apparent, from his agreement with the bank.
    2. As to the proceedings upon the second trial, we make the same point, that the affidavit of Routh relieves the plaintiffs in the court below from the obligation of producing the written general power to Ferriday.
    “ In the case of a general agent, the principal will be bound by the acts of his agent within the scope of the general authority conferred on him, although he violates, by those acts, his private instructions and directions which are given to him, by the principal limiting the exercise of the authority,” &c. Story on Agency, § 128.
    The production of a written instrument may be superseded by an admission in the pleadings. 3 Phil. Evid. 1213 ; Allen’s Lessee v. Parish, 3 Hamm. Ill; 4 Littell, 219; 3 Phil. Evid. 1221; 12 Mod. 564; Holt, 461.
    We call the attention of the court to the following facts which appear from this instrument; proved by a sworn copy.
    1st. That this enlarged general power was given four years after the date of execution of the special powers.
    2d. That at the date of this second power, John Routh was, and recites himself to be, a citizen “of the parish of Concordia, state of Louisiana.”
    The first of the above facts is an answer to any argument that a general power is to be restrained by a special power to the same person. Of course that last executed must govern, and the fair presumption is, an intention to enlarge the powers of the agent.
    The second fact accounts for the execution of the instrument in Louisiana, as being more convenient to the grantor, and furnishing facility for giving notoriety to the act by the aid of a notary.
    We took the deposition of Poindexter instead of that of the subscribing witnesses to the original power.
    Where the attesting witness is beyond the jurisdiction of the court, inferior evidence may be resorted to. 3 Phil. Evid. and cases cited, 1262, 1294; 1 Greenl. Ev. 232.
    The party before whom the acknowledgment was made is a competent witness. Jackson v. Phillips, 9 Cow. 94; Munns v. Dupont, 3 Wash. C. C. R. 42.
    3. The only remaining point upon which any doubt may exist, is as to the competency of Duncan; and here we ask the court to adhere to the rule that no other objection shall be heard in. this court than such as was made in the court below. The sole objection made to this witness was that he was interested. Of this he purged himself, and it is now too late to suggest that the policy of the law is against the husband being examined when the wife is interested.
    The following is the brief referred to by Mr. Eustis.
    The instrument under consideration is called an act par brevet. The law does not require instruments'of this kind to be left or depqsited with the notary; on the contrary, the original is delivered to the party, to be made use of wherever he wishes his attorney in fact to act. As a matter of evidence, it is an authentic act in the sense of art. 2231 of the Louisiana Code. See arts. 2233, &e.; 1 Merlin, Rep. de Jurisprudence, verbo authen-tique (acte). “En general, il est prescrit de garder minute de tous les actes, et ce n’est que, par exception, que les notaires sont autorisés á remetlre aux parties les minutes des actes dont lecon-tenu, la nature etles effets ne presentent qu’un objet ou un interet simple en lui méme et passager, tels que les procurations, actes de notoriété, etc.” Cours de Notariat par Augan, c. 6, sec. 1, p. 52.
    
      
      “Brevet (acte en) C’est un acte notario que la notaire remet aux parties sans en garder minute.” 1 Merlin, Repertoire de Jurisprudence, verbo Brevet.
    
    In order that persons transacting business with the attorney in fact may be acquainted with the full extent as well as limitations of his powers, the procuration is deposited with a notary. The office of notary is of great antiquity, and one of its principal functions is to receive instruments, titles, &c., in deposit. It is a duty incumbent on notaries so to receive them and to retain them, and appertains to no other public officer. “ Les depots que Ven fait aux notaires de pieces dont on veut assurer Vexistence, ne sont pas, á proprement parler, des dépóts, mais des Remises pour minute. Aussitót qu’il est dressé acte de ces remises, elles font partie du depot public, dont le notaire n’est que le gardien,” &c. The author then shows that the original cannot be delivered up. “ C’est aussi dans le méme sens que la loi caracterise les notaires ; ils sont les functionaires publics eta-blis pour recevoir tous les actes et contrats auxquels les parties veulent faire. donner le caractére d’authenticité attachée aux actes de l’autorilé publique, et pour en assurer la date, en con-server le depot, en delivrer des grosses et expeditions.” 8 Merlin, Rep. de Jurisprudence, verbo Notaire.
    
    See also Las Caygas v. LariondaV s Syndics, 4 Mart. La. R. 2S5; Mauri v. Hejfernan, 13 John. R. 58, 73, 74, 75.
   Mr. Justice Thacher

delivered the opinion of the court.

The Agricultural Bank of Mississippi recovered a judgment in the circuit court of Adams county against John Routh and Austin Williams, in an action of assumpsit, founded upon certain promissory notes made in 1839, whereon said Routh and Williams were makers, together with Sh’ipp, Ferriday & Co. in liquidation. The cause has been brought into this court by said Routh and Williams by virtue of the writ of error; but the said writ has since been dismissed here as to Williams. We are called to examine the legality of the judgment against Routh.

There have been two trials in the circuit court. The result of the first was a verdict for Routh, but a new trial was granted there, and upon that trial, a verdict and judgment were rendered for the plaintifFs in the action.

The declaration, in the usual form of actions in assumpsit, alleges that John Routh, by his attorney William Ferriday, made the notes whereon the suit was founded. Routh pleaded non-assumpsit, and a special plea that he did not make the notes set forth in the declaration, and fortified his plea by an affidavit, in which he asserts, that the power of attorney executed by him to Ferriday authorized his said attorney to sign and use his name only in transactions with the Agricultural Bank, for his'sole benefit and in his own affairs and concerns with the bank; and that the notes sued upon were not for his use and benefit, but for the use and benefit of said Ferriday, as one of the commercial firm of Shipp, Ferriday & Co., all of which was known to the plaintiffs in the action; and that this power of attorney was lodged with the plaintiffs, and constituted the only authority under which the plaintiffs received the signature of said Ferri-day for him; and that although he had executed to Ferriday in the state of Louisiana a general power of attorney to sign his name, the same was given to be used solely .in the city of New Orleans.

Upon the first trial, the plaintiffs, after calling upon the defendants to produce the original, offered in evidence a certified copy of the general power of attorney executed by Routh to Ferriday in 1837. Its introduction as evidence was objected to generally by the defendant as incompetent, but no special cause of objection is set out in the record as having been made upon the trial.

The introduction of this copy of the general power of attorney from Routh to Ferriday, as will hereafter be seen, constitutes in our minds the most important and almost the only question in the cause. As no special objection to its introduction was offered, we are left to conjecture what the ground of objection really was, and, we may add, that objections so general are entitled to but little consideration. It often happens, that if specific objections are made upon a trial, the opposite party may remove them upon that trial, or obviate their influence by other or further testimony.

It is presumed, that the objection to the introduction of the copy was based upon the assumption that the original should have been produced, or legal evidence introduced to show that like instruments were subjects of record in the state of Louisiana, in which event only a copy could be held admissible. In the latter event, a specific objection would have compelled such preliminary evidence, if it existed, and have avoided the objection.

The copy offered in evidence has appended to it the certificate of H. B. Cenas, notary public, that it is a true copy of the original power of attorney, and governor’s certificate annexed to an act of deposit of said document passed before him, &c. This is the attestation" of the depositary of the original power under his hand and seal of office. And to this is added the certificate in the usual form of the governor of the state of Louisiana, with the seal of state, according to the act of Congress, entitled An act supplementary to an act, entitled án act to prescribe the mode in which the public acts, records and judicial proceedings, in each state, shall be authenticated, so as to take effect in every other state.” H. & H. 791.

The certificate of the governor of Louisiana, that the attestation of Cenas was in due form, and that he was the proper officer so to authenticate, was evidence that the instrument offered in evidence was a record or exemplification by the law of that State, to be kept in a public office of that state not appertaining to a court. It was at all events -prima facie evidence of the fact, and then it fell upon the opposite party to rebut it by producing the original, and showing it was not recorded, or the law which dispensed with that ceremony. Hastings v. The Blue Hill Turnpike Co., 9 Pick. 80.

Upon the first trial, therefore, we think, under the circumstances, that the copy of the power of attorney was properly admitted in evidence.

The plaintiffs then read the notes in evidence, after a similar objection to that made to the introduction of the copy of the power of attorney. This objection probably grew out of the supposed inadmissibility of that copy, but that objection not being sustained here, the notes were properly admitted as having been executed under that power already in evidence.

• Upon the part of the defence, Routh read in evidence a special power of attorney from himself to Ferriday and others, executed in 1834, limiting the exercise of their, powers in using and signing his name to affairs in which he was solely interested. He also read an agreement between himself and the plaintiffs of the same date, confirming in all respects the last above described power of attorney. He then proved by Ayres P. Merrill, who was cashier of the Agricultural Bank at the time of the date and the discount of the notes, that the bank, so far as he knew, acted upon this latter power of attorney as Ferriday’s authority to make notes in Routh’s name, but did not know what operated on the minds of the directory of the bank in discounting the notes, or whether they were informed of the existence of other powers of attorney from Routh to Ferriday; and that the amount of the discounted paper was passed to the firm of Shipp, Ferriday & Co., and not to that of Routh. There was no evidence offered by him that tended in the minutest degree to show that the plaintiffs knew of the instructions alleged to have been given by Routh to Ferriday, as to the limited use he was to make of the general power of attorney.

The power was executed in Louisiana by Routh, a citizen of that state, to Ferriday, a citizen of Mississippi. It is broad and general, and upon its face has no limitation as to its use either of time or place. The circumstance that it was executed in Louisiana cannot confine its operation to that state, when its terms are so extensive and expansive, and especially when the agent is a citizen of another state. The very fact of the appointment of a resident of another state to the office of attorney, is an additional feature of the generality and universality of the power, and at the least would warrant the use of the power in the state in which the attorney lived. But it is settled that, in a case like this, the onus probandi was upon the defendan t to show that the law of Louisiana is different from that of this state, if he wished any advantage from it. In the absence of such proof, the court, in cases like the present, should act according to' its own laws. Harris v. Allnutt, 12 Louis. R. 465; Sherrill v. Hopkins, 1 Cow. 103; Legg v. Legg, 8 Mass. 99; Harper v. Hampton, 1 Harr. & John. 622; Starr v. Peck, 1 Hill, 270. In Arayo v. Currell, 1 Louis. R. 541, Judge Martin says : “ Where a court knows nothing of the laws of a country, it presumes them to be the same as those of its own. This is the general rule, and the presumption rests on the ignorance in which it is of any other. Perhaps a better reason for deciding according to our own law is, that where we know no other by which our decision may be formed, we must determine according to it, or do so arbitrarily.”

But even admitting that the particular laws of Louisiana put some limitations to the authority of an attorney acting under a general power, they could have no force abroad unless known to those contracting with him. In the above stated case from Louisiana, Judge Martin, upon this point, remarks: “ If the limitation arises not from the owner’s instructions, but from the particular laws of the country from which the vessel has sailed, must not the consequences be the same 1 Can these laws limit the master’s power more effectually than the owner could, or can they extend farther? We think not. They have no force in a foreign country, where they are presumed to be equally unknown.”

A general power was confided to the attorney; but it is said that Routh, by private instruction, limited its use to the city of New Orleans. There was no evidence as to this, nor that the plaintiffs knew of the instruction and limitation. The bank was not bound by any limitation which Routh may have affixed by distinct instructions. Story, in his work on Agency, p. 127, declares the law, that “it would be the height of injustice, and lead to the grossest frauds to allow a principal to set up his own secret and private instructions to the agent, limiting that authority ; and thus to defeat his acts and transactions under the agency, when the party dealing with him had, and could have, no notice of such instructions.” In Lloyd’s edition of Paley on Agency, p. 199, note, it is stated that “a general authority arises from a general employment in a specific capacity; such as factor, broker, attorney, &c. As between himself and his broker, &e., any deviation from instructions will render the latter accountable to him for any loss he may sustain thereby. But, as regards himself and third parties, who may have dealt with the broker, &c., any limitation of the áuthority not communicated to them can have no effect.”

It is not necessary that a person dealing with another, as a general agent or attorney, should be informed of the fact as to his authority or agency. The dealer takes that risk. If the person representing himself a's án agent have, in point of fact, authority to act for and bind his principal, then the dealer takes the benefit of his authority; if he have not, he can look only to the supposed agent. Indeed, this doctrine has been carried to a great length. In Jones v. Littledale, 6 Adol. & Ellis, 490, Lord Denman said : “ There is no doubt, that evidence is admissible on behalf of one of the contracting parties, to show, that the other was agent only, though contracting in his own name; ánd so to fix the real principal.” It is always a question of fact, for the agent having been contracted with as agent, the credit is given to the principal; wherefore, if the relation of principal and agent, existed, co-extensive with the act of agency performed, it consequently binds the principal to the contracting party.

It hence follows that Ferriday had authority by agency of later date than his special power from Routh to make the notes. The finding of the jury upon the first trial was clearly contrary to the evidence in the case, and a new trial was properly allowed by the circuit court.

All that we have remarked in regard to the admission in evidence, upon the first trial of the general power of attorney from Routh to Ferriday, is applicable to the same question upon the second trial. Upon that trial, in addition to the certificate of Cenas, which has been described as appended to the copy of that power of attorney, there is added the deposition of William L. Poindexter, who states that he was the notary public before whom the power of attorney was executed in Louisiana, and that the original was deposited in the notarial office of H. B. Cenas in the city of New Orleans, who, upon request, had refused to deliver them up, for the reason that they constitute a part of his notarial records, and cannot be taken from his office.

As no special objection was taken upon the trial to the competency of the evidence, and as the items of that objection are made for the first time here, we can look to the law ruling in Louisiana as to the propriety of the evidence, especially if it can be shown that, upon a third trial, no other result could occur. The copy would have been admissible in evidence in the courts of that state. The certificate of Cenas describes the power in his hands as so deposited per act, &c., and, as we learn from a brief of the defendants in error, quoting from 8 Merlin, Rep. de Jurisprudence, verbo Notaire, the original of such instruments cannot be given or delivered up. The extract is as follows: “ Les depots que Ven fait aux notaires de pieces dont on veut assurer Vexistence ne sont pas á proprement parler, des depots mais des remises pour minute. Aussitót qiVil est dressé acte de ces remises, elles font partie du depot public, dont le notaire n’est que le gardien,” &c. [Papers deposited in the hands of notaries for the purpose of safe keeping, until the proper time to prove their existence, are not properly called deposits, but are acts for record. So soon as a certificate of such deposit is drawn, the papers then become a part of the “ public papers,” of which the notary is only the guardian.]

The general power of attorney, being legally in evidence, together with the notes, and nothing being made to appear in any way to defeat the action, either partially or totally, we hold the second verdict and judgment to have been correct. ■

It may be proper to observe, that the question of Duncan’s competency to testify was improperly decided by the circuit court, but his exclusion upon another trial could not effect a different result, as his testimony was merely cumulative. The question of legal competency to testify is never a question of morals, but of law. It might be true that Duncan disclaimed all intention to assert his legal rights over his wife’s stock in the bank, or its profits; but the law gives him those rights, and therefore attaches to him an interest. Besides, it is contrary to the policy of the law to permit a husband to testify in a case where his wife is interested; and although that special objection was'not made, it will always be considered whenever the circumstance arises.

The judgment must be affirmed.  