
    Mandeville v. Perry.
    [May, 1806.]
    Record. — Wüát is part of the record.
    Deposition — Objection—Waiver.—Unless the hill of exceptions states that the deposition was objected to for want of notice of the time of taking it, that objection will not be regarded on the appeal. Same — Papers Referred to — Record.—And, in such a case, all papers, referred to by the deposition, will be considered as part of the record.
    Witnesses — Interest—Release—Effect. A release removes the incompetency of a witness on the score of interest.
    Perry brought indebitatus assumpsit against the defendants in the district court, and declared for money had and received. Plea non assumpsit; and issue. Commissions were awarded by consent to take the depositions of Blake, Yard, Walsh, Turner, White and others. Upon the trial of the cause, the defendants filed a bill of exceptions, stating, that the plaintiff offered in evidence the deposition of Thomas Peter-kin, then a resident of the district of Columbia, *stating, “That the plaintiff endorsed two bills of exchange to the deponent to collect; the one drawn by Marsolier on James Yard for $2000; the other by Valentine Blake on Pepper & Sat-terthwait for £49. 10. That the deponent endorsed those bills to Mandeville & Jame-son, to collect for the benefit of the plaintiff. That the deponent hath never received the amount, or any part thereof, from Mandeville & Jameson. That the deponent is not interested in the event of the suit. That the defendants objected to the admission of the deposition, but was overruled by the court; who allowed it to go in evidence to the jury.”
    The following papers are copied into the record as “papers filed,” but not made part thereof by the bill of exceptions, viz:
    1. A receipt in these words: “Received of John Perry a draft on Pepper & Satterth-wait, drawn by Valentine Blake for £49. 10. New York currency, and Marsolier’s draft on James Yard of Philadelphia, for two thousand dollars for collection. Thomas Peterkin. Alexandria, Sept. 26th, ’97.” And endorsed, “Alexandria, 22 Jan. 1798. Mr. Peterkin, pleas to pay the amount of the within mentioned draughts to Woods' & Bernis. John Perry.”
    2. A power of attorney from Perry to Daniel Woods to recover the said bills of exchange.
    3. A release from the plaintiff by Daniel Woods to Peterkin. To which there is no seal annexed, although it concludes with saying, that he hath thereunto set his hand and seal.
    4. The deposition of Charles Turner— Which says, that when he served the subpoena on Peterkin, he said he would not attend without his expenses were first paid. That from conversation with Peterkin, he thought he considered himself entitled to the money for which the suit was brought.
    5. The deposition of B. White — -Relating a conversation between himself and the plaintiff; who stated that he had endorsed the bills to Peterkin as a security for undertaking to be his bail; but that he had afterwards neglected to do *so. That the plaintiff afterwards told him Peterkin said he had lodged the bills for collection with the defendants; who would give him the amount as soon as they knew the bills were paid; and that he would then settle and pay the plaintiff. That deponent and the plaintiff went to enquire of the defendants; at which time the defendant Jameson said, “That the defendants received the bills of Peterkin, and had placed them to his credit; that they were ready to-settle accounts with him; and that they knew not the plaintiff in the business.” That he never heard the plaintiff express an idea that the defendants were accountable to him; but always that Peterkin was. That Woods & Bernis made many attempts to settle with Peterkin, but could not; and that Daniel Woods informed the deponent, that Peterkin had declared he could not pay, and proposed a release in order to qualify him as a witness, when he would swear that he gave the bills to the defendants for account of the plaintiff. That he afterwards was informed by Daniel Woods that the release was given.
    6. A copy of the ■ bill for $2000; endorsed to Peterkin by the plaintiff; and by Peter-kin to the defendants.
    Verdict and judgment for the plaintiff; and the defendants appealed to the court of appeals.
    Botts, for the appellants.
    The notice for taking.the deposition of Peterkin, is no part of the record; for it is not made so by the bill of exceptions, but is inserted by the act of the clerk only. The same objection lies to the release to Peterkin. The declaration is too general. Overton v. Hudson, 2 Wash. 179; M’Williams v. Smith, 1 Call, 123; Wood v. Luttrel, 1 Call, 232. The plaintiff ought to have shewn, that the money was actually received by the defendants; but the evidence offered for that purpose was immaterial, and should not have been received.
    Wickham, on the same side.
    Nothing is part of the record, which is not made so, either by pleading, bill of exceptions, *or demurrer to evidence: and therefore the notice of the taking of Peter-kin’s deposition, not having been made part of the record by one of those modes, cannot be regarded. 2 Wash. 146. But, if the deposition had been duly taken, it ought not to have been read, because he was interested: for, by receiving the assignment, he became agent for the plaintiff, and was bound to use due diligence. If it be said that he was liable both to the plaintiff and defendant, the answer is, that, if he was liable to the defendant at all, it was as endorser only; and, as due diligence is not shewn, they would not be able to charge him. Besides, if the bills were paid, it was impossible to charge the endorser after-wards ; and therefore, qnacunque via data, he is not liable to the defendants. The pretended release did not render him competent; for he is the witness that proves it. His voir dire is unimportant; because his interest is proved aliunde. The defendants were liable to Peterkin only, and not to the plaintiff; for as Peterkin was endorsee of the bill, he might have done what he pleased with it; and all the plaintiff’s remedy against him was an action for the fraud. Payment to Perry would not have exonerated the defendants from Peterkin; for there was no privity between the plaintiff and the defendants; which proves that the declaration is not special enough.
    Lee, contra.
    The record contains the notice of the taking of Peterkin’s deposition ; and the court may inspect it, although not formally made part of the record, Syme v. Butler, 1 Call, IOS: for, in that case, the court did refer to the papers filed, notwithstanding they were not declared by the district court to be part of the record: Besides, the bill of exceptions does not state that notice was not proved. Peter-kin’s deposition was admissible; for, as he was liable both to the plaintiff and the defendants, he stood indifferent in the cause, 2 Bast. 458; 2 Ld. Raym. 1008: And he might prove his own agency. 7 T. Rep. 480.
    82*Call, on the same side.
    The court has been in the habit of referring to all the papers contained in the record, Syme v. Butler, 1 Call, 105; Mennis v. Pollard, 1 Call, 227; Osswald & Co. v. Dickinson’s ex’ors, 2 Call, 16; Preston v. The Auditor, 1 Call, 471: And the act of assembly requires them to be kept, and recorded as part of the proceedings. PI. JEJdi. of the Laws, 81. Besides, they came up by writ of certiorari; and therefore must be considered as part of the record. Peterkin was a competent witness, for the reasons mentioned by Mr. Lee; because White proves he was debtor to the defendants ; to whom he will be necessarily liable, if the plaintiff recovers. The objection to the release is immaterial; for the plaintiff produces the deposition which refers to it. If Peterkin’s deposition be admitted, the privity, between the plaintiff and defendants, is clearly established. The declaration is special enough; for the subagency of the defendants makes it the common case of an action for money had and received.
    Randolph, in reply.
    The endorsement made the defendants the owners of the bill; and Peterkin, being endorser, could not be received to prove any thing against it. White’s deposition is not part of the record; and the release is not properly authenticated.
    Cur. adv. vult.
    
      
      Record — What Constitutes. — On the question of what constitutes the record, the principal case is cited in White v. Toncray, 9 Leigh 351, and foot-note; Roanoke Land & Imp. Co. v. Karn, 80 Va. 591.
    
    
      
       W itnesses — Interest — Release — Effect, — Kor the proposition that, a release removes the incompetency of a witness on the score of interest, the principal caséis cited and approved in Waggener v. Dyer, 11 Leigh 390; foot-note to Murray v. Carret, 3 Call 373.
    
   TUCKER, Judge.

The objections offered by the counsel for the appellants to the testimony of Thomas Peterkin, the witness in this cause, to which an objection was offered at the trial as not being legal evidence, were three.

1. That no notice appears to have been given to the appellants of the time and place of taking the deposition.

It was matter of astonishment to me to hear the same gentleman, who made this objection upon the subtle distinction of the import of the words legal evidence, acknowledge that, in point of fact, there was due notice, and that it was now apparent by the record, as brought up by writ *of certiorari. Had the objection for this cause been intended, it ought to have been so stated in the bill of exceptions. It was not so stated, because not true. Consequently, the judges who signed the bill of exceptions would have rejected it, had it contained such an untruth. Not being stated, I will not regard the exception as going to the manner of taking the deposition, but to the substance of it; of which I shall speak hereafter.

This extraordinary objection produced a discussion to which I think it necessary to give an answer. The question is, What this court will consider as constituting the record of which it is to take notice in cases at common law?

I answer the writ, for the purpose of amending by, if necessary. The whole pleadings between the parties. Papers of which a profert is made, or oyer demanded. And such as have been specially submitted to the consideration of the court by a bill of exceptions, a demurrer to evidence, or a special verdict, or are inseparably connected with some paper or evidence so referred to. These, with the several proceedings at the rules, or in court, until the rendition of the judgment, constitute the record in common law suits, and are to be noticed by the court, and no others.

In this case, the deposition refers to the dedimus thereto annexed. This reference I deem unnecessary; because, if there was a commission, the deposition was inseparably connected with it, as was every paper that related to its execution. But it removes all grounds of doubt or cavil.

The substance of the deposition thus objected to as illegal evidence, is, that Peterkin received from the plaintiff two bills of exchange to collect, and endorsed to him for that purpose; and that he after-wards endorsed them to the defendants for the express and sole purpose of collection for the benefit of the plaintiff, and that he hath never received the amount of the bills. He further swears that he is not interested in the event of the suit, having been exonerated from all claims by Daniel Woods on behalf of the plaintiff, which exoneration is annexed to his deposition.

*On this the defendants found their second objection, viz:

2. That Peterkin was an incompetent witness, having been once answerable for the bills, and not exonerated in law.

It was urged that a witness, to be competent, must be wholly disinterested at the time of giving his testimony. If Peterkin was ever exonerated, it must have been before he gave his testimony ; for he refers to the instrument of exoneration annexed to his deposition. He must, therefore, have known of it at the time; and his evidence shews he believed it sufficient to exonerate him from any demand by the plaintiff. But it is said that Woods’s authority was posterior to the instrument of exoneration. How this appears, by the record, I do not see: And the plaintiff, by bringing in the deposition, with the exoneration annexed to it, confirms the release, and acknowledges the authority of Woods. The probate of Woods’s authority (if regularly a part of the record) substantiates his power from the date of the power, and not from the date of the probate only. As to the objection that the probate was before a notary public, the act of assembly expressly authorizes it. Virg. Laws 1794, ch. 91.

3. It is objected, that the commission was de bene esse, and that the proper proof was not produced. This, if true, ought to have been stated in the bill of exceptions; but, on the contrary, that states, that he was then a resident in the district of Columbia ; and consequently, not within the jurisdiction of the court.

4. It is objected, that the deposition does not support the count. The question, however, is not as to the sufficiency of the evidence, but as to its legality.

I am therefore of opinion, that the judgment ought to be affirmed.

CARRINGTON, Judge, and LYONS, President, concurred, saying that the point of competency was no longer a question, as the release had removed the objection, according to the case of Murray & Co. v. Carret & Co., 3 Call, 373.  