
    Smith v. The Natchez Steamboat Company.
    The subscription paper of a company is legal evidence, and when it contains an agreement to pay money, an action may be sustained thereon. The books of a corporation are evidence as between the members, but not admissible until they are proved to be the books of the company.
    The secretary of a company is the proper person to prove the books of the company.
    A failure to meet according to the fundamental rules, does not necessarily work a dissolution of the corporation; nor does a failure to elect officers at the stated times dissolve the corporation; but the old officers hold until their- successors are appointed.
    After the death of the secretary, any member of the corporation may rightfully have possession of the books, and such possession will justify their introduction as evidence. The company have power to place the books where they please. The books are the best evidence of the acts of the corporation.
    A release of interest by one of the members of a corporation, renders him a competent witness.
    It is not necessary to prove the precise words used by a deceased witness, on a former trial; the substance is sufficient.
    A requisition for the payment of stock, made by the directors of a corporation under the authority of the by-laws, is binding without the assent of each individual stockholder.
    If depositions are ruled out for want of regularity, it cannot be regarded as surprise, and does not constitute ground for a new trial.
    When testimony is ruled out, its character should appear on the record, that the appellate court may judge of its materiality.
    THIS action was brought by- the Natchez Steamboat Company against Calvin Smith, a stockholder, to recover certain in-stalments or requisitions made by the directors for a portion of the amount subscribed.
    In 1818, the company was organised, and the requisite amount of stock subscribed, of which the plaintiff in error took twenty shares. In 1819, the company was incorporated by an act of the legislature, by which it was among other things, enacted, that the company shall be governed by such constitution, by-laws, and resolutions as may have been, or should thereafter be passed for that purpose by the company, &c.
    The company entered into business, contracted debts, and requisitions were made after the act of incorporation, for the purpose of discharging the liabilities of the company. The company at various meetings authorised the collection of these requisitions. The plaintiff, Smith, attended one of the meetings of the company, and did not protest against the requisitions, or the enforcement of collection.
    At the trial below, the original subscription paper was offere'd in evidence, to which the counsel for the defendant objected, but the objection was overruled by the court.
    The plaintiffs then offered G. Tichnor as a witness to prove the books of the company, who stated he was a stockholder and interested in the event of the suit. He further stated he had been the treasurer from its first organisation, but had never been the secretary; that the books of the company had been deposited with him, in 1823, after the death of the secretary, and remained in his custody until he handed them over to S. T. M’Murrain, in 1826. The defendant’s counsel objected to the said Tichnor as-incompetent, on the score of interest, and as incompetent to prove the books, not being, and never having been the secretary of the company; the court overruled the objection.
    The plaintiffs also offered P. M. Lapice, as the secretary of the company, to prove the books of the corporation; but the defendant’s counsel objected to the said Lapice on the ground that he tvas not regularly appointed secretary of the company; he not having been appointed until three or four years after the members of said corporation had ceased to meet at the times required by the fundamental rules; and, also, on the ground that said Lapice had not the custody of said books since his appointment; which objection was overruled by the court, and Lapice admitted as a competent witness, to prove the books, and stated, that he was appointed secretary in 1827. An objection was then made to the introduction of said books, and to the proceedings in said books at all the meetings at which assessments and requisitions were made on the stock of individual members, on the ground that the corporation possessed no power to make such assessments; objections were also taken to other proceedings in said books, all -of which were overruled by the court.
    Stephen Duncan Avas also called as a Avitness, Avho stated he Avas a member of said company, and would have considered himself interested in the event of this'suit, but for a release Avhich he had executed in open court, and which had been accepted by the counsel for 'the company. Witness further stated, that he had never resigned his membership in said company, or been disfranchised of his rights as a member. That about 1000 dollars Avas deposited in bank to the credit of said company for the purpose of defraying the expenses of the suit; 'and that, should that sum be insufficient, lie- should still consider himself bound, notwithstanding his release, for his due proportion of the expenses of this suit. Whereupon the defendant objected to said witness as incompetent, Avhich objection was overruled.
    The plaintiff’s counsel offered R. J. Walker, and T. J. McMur-ran, to prove what C. Kyle deposed to on a former trial, said Kyle having since departed this life; but as Walker and McMur-ran could only testify to the substance, and not to the Avords used by said Kyle on the former trial, the defendant’s counsel objected to their testimony, Avhich objection Avas overruled.
    The court charged the jury, that if they believed said Smith attended any of the meetings of the said corporation, and did not protest against their proceedings, he was chargeable with, and bound by them.
    The defendant moved further for a new trial which motion was overruled. To all which opinions of the court, the counsel for the defendant tendered bills of exceptions.
    R. M. Gaines, of counsel for plaintiff in error,
    contended:
    1. The court erred in admitting Tichenor, Duncan and Lapice as witnesses for the plaintiffs below.
    Where a corporation are parties, or immediately interested, no member of it can be a juror or witness. 1 Yeatés’s Rep. 480; Angel and Ames on Corporations, 390; Ibid. 393.
    Where a member of a corporate body can derive any personal advantage from the verdict, he is excluded by the general principle. 2 Starkie on Evidence, 426.
    Persons liable to the costs of the action, have an immediate interest in the event, and, therefore, are not competent witnesses. 1 Phillips on Evidence, 49; Doctrine discussed, 16 Johns. Rep. 89; 2 Chan. Rep. 269; 11 Johns. Rep. 57.
    In this case the above named witnesses are liable for the costs to defendant, and from such liability Lapice can in no way release himself.
    One partner is not a competent witness to prove that defendant is also a partner, because he is interested to fix the liability of defendant. 2 Dessaus. Reports, 4, 5.
    Objections to the competency of witnesses never come too late, but may be made at any stage of the cause. Harden’s Reports, 51.
    2. The court erred in admitting the books of the corporation in evidence to the jury.
    Entries made by a clerk in the 'books of the trustees, being a corporation, by the direction of the trustees, are not evidence in a cause in which they are interested, nor is the evidence of the clerk who made the entries of the declaration of the trustees admissible. 3 Johns. Rep. 226.
    To entitle corporation books to be given in evidenee, it must appear that the entries were made by a person duly authorised; and it is not enough to prove that they were in the handwriting, &c. 10 S. & R. 154.
    The books of a teller in a bank is not per se evidence, to establish the facts appearing in that book. Courtney v. Commonwealth, 5 Rand. 666.
    Entries which are made in corporation books, of matters relative to any property or right claimed by them, can never be evidence for them, unless made so by act of the legislature. Angel and Ames on Corporations, 407.
    3. The court erred in admitting the testimony of Walker and McMurran, to prove the substance of what C. H. Kyle testified to on a former trial.
    
      The person called to prove what a deceased witness said, must undertake to repeat precisely his very words, and not merely to swear to their effect. 1 Phillips on Evidence, 215. The words of the witness must be given, not what is supposed to be the substance of his testimony. 6 Cowen, 164; see also 4 Johns. Rep. 290; 4 S. & R. 203.
    Partiality of counsel renders such declarations particularly objectionable.
    4. The court erred in the charge to the jury.
    Of a corporation, Chief Justice Marshal says: “ Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it.” 4 Wheaton, 636; 2 Cranch, 127.
    A private corporation is distinguishable from a municipal corporate body, by having a corporate fund from which a judgment can be satisfied; and by the irresponsibility of the members for the corporate debts, beyond the amount of their interest in the funds. Angel and Ames on Corporations, 23.
    The personal responsibility of the stockholders is inconsistent with the nature of a body corporate. Tilghman, C. J., in Myers jv. Irwin, 2 S. & R. 371.
    If a creditor cannot hold a member liable beyond the amount of his stock, much less can the corporation do so.
    “ A corporation has no power to assess the shares of a member, unless such power has been conferred by charter.” Angel and Ames, 302.
    “ Unless a party, therefore, clearly engages to pay assessments, he cannot be sued for the amount of them by the company.” Angel and Ames, 302, and cases there cited.
    The extent of the liability of a party contracting to pay assessments, is indeed to be measured by the extent' of his express engagement. Angel and Ames, 306Í
    It is evident that no promise can be implied, as there was no moral obligation or legal liability resting upon the defendant below, which would serve as a consideration to support such implied promise.
    
      In fine, it is settled, that when the corporators expressly agree to pay the assessments, to induce the corporation to make the road, an action can be maintained on that agreement. 6 Mass. Rep. 40; which is a case in point directly. 8 Mass. Rep. 138. A .case of still greater authority. 10 Johns. Rep. 217; 14 Mass.: Rep. 286; 10 Mass. Rep. 384.
    Even if the defendant below had made a verbal promise to pay' the assessment, it would'have been a mere gratuitous promise without consideration, and therefore void.
    Express contracts are where the terms of the bargain, agreement or promise, are openly uttered and expressed by the contracting parties themselves. Cowen on Contracts, 4.
    And these contracts or promises, ought to be certain and explicit. Ibid.
    
    
      ■ 5. The court erred in refusing to grant a new trial.
    • The court have always considered it good ground for a new trial where an important deposition is ruled out, on account of some mere technical informality; and when the party states that he relies on the deposition, and the deposition shows it materially.
    This position is much stronger when the deposition has been once read without objection.
    McMurran, contra.
    
    By the subscription paper, and books of the company, which are made a part of the record in this case, it appears, that in 1818, the requisite amount of stock was subscribed for, of which stock, 'Calvin Smith took twenty shares.
    The company was organised, and adopted a constitution, &c. On the 20th of February, 1819, it was incorporated by an act of the, legislature, by which it is, among other things enacted, that the. company shall be governed by such constitutions, by-laws and resolutions as may have been, or should thereafter be passed for that purpose, by the company, &c. See Laws of Mississippi, 1819, p. 88.
    • The company were unfortunate, and sunk in the business an immense sum of money over the original amount of 100,000 dollars. These requisitions were made upon the stock of the members for the discharge of those debts, which were unavoidably and honestly due by the company. The company acknowledged the necessity and correctness of the requisitions by authorising the. directors to make them, directing the collection of them to be forced by suit, &c. See book of the company, meeting July 23, 1823. Also April, 1820. And see particularly, meeting April, 1S26, of the company, at which meeting" Calvin Smith himself . attended, and at which meeting it was resolved, that all delinquent stockholders, an account of requisitions, &c., should be prosecuted. Calvin Smith never protested against these debts, and these requisitions.
    After the formation, but previous to the incorporation of the company, they had purchased boats, and made contracts to the amount of, say 120,000 dollars. The act expressly refers to the previous acts of the company, and unquestionably intended to bring them within the charter of incorporation, as charged by the judge, and excepted to, or creditors would have been deprived of the debts due by the company at the time of incorporation, and for which every individual, members of the association previous to the incorporation, was liable to the extent of his property.
    The company was incorporated with all their debts and credits as they stood at the time the legislature granted the charter. , Upon those terms the company and the members became incorporated, and can it be inferred either from the constitution, the by-laws, or' the act of incorporation of the company, that it was to screen them, or any member from the payment of his proportion of the just debts of the company; and that assessments could not be legally made for that purpose? The direct contrary is clearly irresistible. But the requisitions were made after the incorporation of the company. 1 Pick. 215; Ibid. 372, 297; Lqws of Miss. 1819, p. SS.
    • Let us refer to the charter, and then apply to this case those rules by which a court is to be guided in testing the validity of by-laws. The charter leaves the company unrestricted as to its power in making by-laws; and their true test is, whether they. are reasonable and for the good of the corporation; and the intention of the legislature in granting the charter. Laws of Mississippi, 1819, p. 88 and 89: 1 Bac. Abr. 554; Ibid. 545, notes; 3 Burr. Rep. 1S3S; Ibid. 1323, 1338.
    The intention of this corporation was to keep in trade steamboats, and when, in pursuance of this object, debts were unavoidably incurred, it was necessary that they should be paid, and extremely reasonable and right that it should be done by the members who expected to share the profits, according to their shares of stock; and a sure pledge against the abuse of such a power, by a corporation, that its by-laws operate upon all equally, the only guaranty we have against unjust laws of taxation, &c.,by the government, a corporation upon the largest scale. And let me add, that governments as well as corporations, have within them the necessary power of preserving their own existence, and of acting up to the design for which they were created.
    But it is urged by the opposite counsel, that no matter how reasonable a by-law may be, there is a distinction between public and prívale corporations; in the former, a majoritymay bind; 'in the latter, every member must concur. It is admitted, that this distinction does exist, as it regards unincorporated associations of individuals, or the delegation of a power or trust, to a certain number of individuals. But no such a distinction is re-cognised by the law as applicable to corporations. Blackstone makes no such distinction, and the authorities cited by Kent, show clearly that the gentleman has misunderstood him, and that the chancellor states the very reverse to be the law of corporation — that a majority present can do all corporate acts, unless there is something in the constitution or charter of the corporation to the contrary, which is not the case in this instance. It is left to the company as it stands at common law, except that a majority is required to dissolve the company, or to alter any of the constitutional rules. The original subscription is not one of the fundamental rules, nor is it any where resolved that the amount subscribed for should not be exceeded. Besides, the charter or act of incorporation authorised to hold property to the amount of 500,000 dollars, and gives them full power to make all bylaws.
    A majority of those present at'any regular meeting of the company, were sufficient to pass any resolutions which were reasonable, necessary, and in furtherance of the objects of the company and its corporation. And when the books of the company state a meeting, &c., it is evident that such was the fact; and this remark, and the authority of the case from Sergeant and Rawle, is conclusive upon the first technical exception taken by the defendant’s counsel, as stated in the bill of exceptions. 2 Bac. Abr. 16, 17; 3 Serg.'& Rawle, 29. 31, 32 and 43.
    These requisitions were necessary to defray the unavoidable expenses of the company. The company, at their meetings, authorised them, desired the collection of them; at the last of which meetings, Calvin himself attended, and passed the resolution, that they, and all arrearages should be collected. According to the foregoing authorities, assessments were authorised, and every member of the company is liable for his portion, according to his stock. Livingst. 252; 1 Bac. Abr. 545, 546. The case of The Vintners of London, &c., 4 Hen. & Mun. 315, 331. 345. 349. 334; 2 Am. Jurist, 547.
    In answer to the authorities cited on the other side, beginning with those from the Massachusetts Reports, it will be found that every decision and every case from those reports, went upon the principle that there was a specific remedy provided in the act of incorporation for the enforcement of the by-law, namely, a sale of the assets; and this being in the charter, it was the only remedy the corporation had, and were thereby deprived of the common law remedy. But in none of those cases is it stated, that the company could not enforce the statutory remedy of a sale of the shares. See the different authorities and cases, quoted by opposite counsel, from the Massachusetts Reports. 6 Mass. Rep. 40; 14 Mass. Rep. 286.
    In the present case, no remedy is pointed out by the act of incorporation, and the corporation is left to the common law remedy by action of debt or assumpsit. 1 Chitfy’s Plead. 91 and 95. 9 Living. 252.
    
      The case from Connecticut Reports was when the directors, unauthorised by the company, or any corporate act, obtained a resolve of the legislature for additional assessments. 2 Conn. Rep. 579.
    The case from Pennsylvania was where a charter was granted to a company, authorising them to regulate the wharfage of •public landings, and that did not appear oh the proceedings. 3 Yeates, 54.
    As to unreasonable by-laws, &c., being repugnant to the charter. 4 Dessaus. 573.
    But the case which has been urged with the most apparent confidence by the opposite counsel, is that in first Term Reports. That was a by-law incurring a forfeiture. The charter empowered them to make by-laws, arid enforce them by fine and amercement, but in no other way. It was an extraordinary power, exercised by the corporation, seldom exercised even by parliament itself, and only in punishment of crimes, by bills of attainder, &c., which the constitution of the United States prohibits. And therefore, the court decided that this extraordinary power of depriving a member of his property without a trial, without a verdict of his peers, or the decision of the ordinary tribunals of justice, was not incident by the common law to corporations.
    But such is not the case before this court. This is an ordinary, reasonable and necessary by-law, to be enforced in a common way, through the courts of the country. 17 Rep. 118: 4 Bl. Com. 380, 381; 1 Bac. Abr. 551, &c.
    In 1 Pick. Rep. 272, 10 Serg. & Rawle, 75,11 Mass. Rep. 113, and 14 Mass. Rep. 172, the court expressly states, that there was no express promise on the part of the corporation, to contribute to the debt, and is conclusive on the point, that an implied promise to pay a proportion of the debts of the corporation, is sufficient to sustain, &c.
    Where there is an equality of right there is an equality of burden and expense, which will be enforced: and it is too late to set up a defence against a recovery of his portion of that expense after it is in court, and when it is discovered that losses instead of profits are the result of the concern. 4 Johns. Chan. 334, &c.
    
      There was a motion for a new trial in this case, in the court below, which was overruled, and properly so.
    In the first place, there had been two new trials granted to Smith, and three verdicts recorded against him; and neither that court nor this can grant another, a “new trial” and “ venire facias de novo” being the same thing. 2 Tidd’s Practice, 935, 953; Rev. Code, 121, sec. 73; page 126, sec. 100.
    Again, if substantial j ustice has. been done, no new trial will be granted, although' there be errors in the record. 1 Peters’s S. C. Rep. 183.
    ' But taking up the grounds set forth in the motion for a new trial, and the exceptions together, and they ate the same. The first ground is, that the books were improperly admitted in evidence, There is nothing in this. The books were proved, and were the best and most competent evidence against Calvin Smith, one of the company. See 2 Yeates’s Rep. 121.
    Another error alleged is, that the testimony of Lapice, Duncan and Tichenor ought not to have been allowed to go before the jury, on the ground of incompetency. As to Tichenor, he was, and still is, the treasurer of the company, and the secretary being dead, a part of the time the books were left with him! Who then could testify as to said books during that period but him? He was the keeper of them. So as to Lapice; he afterwards 'was the keeper of these records of the company; no one else could keep them. As an officer, therefore, intrusted with these books, and it being the best evidence that could be offered, both Tichenor and Lapice were competent witnesses, in a suit between the company and one of its own members, to prove the safe keeping as well as the-identity of the books. 2 Yeates’s Rep. 121; 1 Stark. Ev. 193; 3 Serg. & R. 29; Bull. N. P. 289'.
    So with regard to Dr. Duncan; if he Had been incompetent his release was all sufficient. It was a donation to the company of his interest; there was no need of its formal acceptance by the company at all, but their counsel accepted it; and if that was not sufficient to give it to the company, it at least gave it to Walker and McMurran, which was all sufficient. Upon this subject see 2 Yeates’s Rep. 120-1, &c.; 2 Cowen’s Rep. 770-7, &c.; Bull. N. P. 289.
    Again, the testimony of Walker and McMurran is objected to, on the ground that they could not swear to the very identical words used by the deceased witness, Kyle, upon a former trial. No honest witness would ever make such an oath, and the law does not require it. The case referred to by the opposite counsel, as contained in the 4th Term Rep., is a mere dictum, and is not the law. The law is correctly laid down, and the authorities cited in 5 Randolph’s Rep. 31, 35, 36, &c.
    The charge of the judge below was correctly given. In this case the charge was, If the defendant assented to the payment of the requisitions, by his words, acts or conduct, he is responsible. This was a legal charge. It had nothing to do with any implied promise or consent, based upon any liability — the charge rested on an express assent. See Starkie on Ev. 75. 82, 83; Pickering’s Rep. 297. 304; 1 Powell on Contracts, 80.
   Mr. Chief Justice Shamcey

delivered the opinion of the court.

This action was instituted in the circuit court of Adams county, by the Natchez Steamboat Company, a body corporate, to recover of the plaintiff in error, as a stockholder, certain instalments, or calls ¡hado by the directors, for a portion of the amount subscribed. Three verdicts have been found against him, and on the third trial several bills of exception were taken, which embrace the ■matters assigned as error.

It is first assigned as error that the court admitted G. Tichenor, S. Duncan, and P. M. Lapice, as witnesses for the plaintiff. It is shown by the bill of exceptions that two of these individuals were stockholders in the company, and the objection was made on the ground of interest. The facts are more fully set forth in the second bill of exceptions, and as there presented, they will be noticed. The first matter of evidence was the subscription paper, which was properly admitted to go to the jury. 14 Johns. Rep. 238. Tichenor was then called, who stated that he was the treasurer of the company from its organisation, and was a stockholder, but had never been secretary. That the books had been deposited with him after the death of the secretary, and had remained in his possession for some' time, and until they -were delivered to the plaintiff’s counsel. The books of a corporation are evidence as between the members. 1 Starkie’s Evidence, 298; 5 Wheaton, 420. But they were not admissible as evidence, until they were proved to be the books of the company. 10 Johns. Rep. 154. To prove this fact Tichenor was introduced, and the question arises' whether his interest as a stockholder, was such as to disqualify him. If this objection rested on the ground merely of his being a stockholder in the company, it would, under the circumstances of the case, present a question of some doubt, as to his competency. It appears from the testimony that a sum sufficient to cover the' costs had been deposited in bank for that purpose. Ploiv the money was raised, and whether Tichenor had contributed, and would be entitled to have his portion refunded, does not appear, his liability for costs would present the strongest objection to his competency, and though the presumption of bias might be removed by the deposit made for that purpose, as it was held to be in 2 Yeates’s Reports, 121, yet it does not appear but that a part of the fund deposited was his, and he would be entitled-to a return of it, in the event of success. -The money was deposited by the company, and such an inference was justifiable. In addition to this, the witness stated that- he was interested in the event of the suit, and that ■statement is not explained away. How he was interested does not appear, and we cannot, therefore, undertake to say that it was not such an interest as to render him incompetent. But the same objection does not reach the testimony of Lapice, and he proves the same thing that Tichenor was called to prove, to wit, that the books exhibited were the books of the company. Lapice was the secretary and of course the proper person to prove the books. The objection made to him was that he had not been regularly appointed.. Of that we cannot- judge. The books .are not before us, and we - cannot determine on the legality or regularity of their contents. It appears that he was not appointed until three or four years after the members of said corporation had ceased to meet at the times required by their fundamental rules.” A failure to meet at the times required by the fundamental rules would not necessarily work a dissolution of the corporation, and if they were not dissolved it can be no objection to his appointment, that they did not meet regularly at the times required by the bye-laws. Even a failure .to elect officers at the stated times, does not dissolve a corporation, but the old officers are considered as holding, until new ones are appointed. 9 Johns. Rep. 147.

Another ground of objection to him was, that he had not had the custody of the books. It is laid down as a rule that documents which are to be used, should come from the proper place of deposit. If the secretary had been living, the books should have been in his custody; but after his death, any'member of the company might have had the rightful possession of the books, and such possession from the necessity of the case, would be sufficient to justify their introduction. It was not essentially necessary that all the entries should have been made by the secretary; but entries made by any person acting for him in his necessary absence would be good. And if the company had the power to appoint or authorise any one to act for the clerk, in his absence, or to act after the death of the secretary; they must also have possessed the power to place the books where they pleased. 1 Starkie on Evidence, 299, 300.

Documents of this description are not admissible without collateral evidence, and this collateral evidence is required to identify the document, and wheii so identified, it becomes evidence. Nothing else was necessary but to establish the identity of these books, to make them evidence. Lapice testified that they were the books of the company, and it was not necessary to enter into proof as to the correctness of the entries in the books, for to admit such a proposition would be to deny that the books were evidence.

In tire case of Owens v. Speed, 5 Wheaton, 420, the books of a corporation were proved by the clerk then living, and it was said they were the best evidence of their acts. An objection to corporation books arose in the case cited from 10 Johns. Rep. 154, and the court said the books were improperly admitted; but they were only proved by a witness who swore to the handwriting of an individual, státed therein to be clerk, but he did not know it to be the book of the corporation. It was admitted, that the books of a corporation, were the best evidence of their proceedings, but that it should be made to appear'that they were the books of the corporation, kept as such by the proper officer, or some one autho-rised. As Lapice has sufficiently established the same fact, that Tichenor was called to prove, there can be no reason for rever-. sing the judgment on that ground. There is no tenable objection to the testimony of Doctor Duncan. If he had not made the release it might have been otherwise, inasmuch as he stated that he should have conceived himself interested but for the release; that, however, must be deemed entirely sufficient to remove the presumption of bias. His stating that he should feel himself bound to contribute, if the sura deposited should be found insufficient to pay the costs, presented only a remote and very improbable contingency, which was not sufficient to disqualify him. There is nothing, therefore, in the first cause assigned for error.

It is, secondly, assigned as. error, that the court admitted the testimony of R. J. Walker and T. T. McMurran. These witnesses were examined to prove what a deceased witness had sworn on a former trial, and their testimony was objected to, because they did not undertake to repeat the precise words used by the witness.

. By the English authorities, it would seem to be necessary to prove the language used by the witness in such a case. Phillips’s Evidence, 215; 4 Johns. Rep. 289-90. The King v. Joliffe. But . hr a recent case decided in Virginia, it was held to be sufficient to prove the substance of what was sworn to, on the former trial. Caton v. Lenox, 5 Randolph’s Reports, 31. There are strong reasons that might be urged in favor of both rules. The admissibility of such testimony, can only be justified by necessity; and if the substance of what the deceased witness swore to can be positively proved, it would seem to be sufficient to answer the purposes of justice.

To confine the rule to the precise words of the deceased witness, would in most, or in perhaps, all cases, destroy or defeat it, and considering it as a rule of necessity, it is, perhaps, safest to admit the substance of the testimony, as it is the substance which fixes the fact, and leads to the conclusion. In this instance, however, I look upon the testimony of Kyle, the deceased witness, as deposed to by Walker and McMurran, as so wholly irrelevant to the merits of the case, that if it had been necessary to prove his words, it would not present a good reason for reversing the judgment. Kyle, it appears, only .spoke of the value of the stock, and the presence of the defendant, at one of the meetings of the company. Whether the stock was worth one cent in the dollar, or whether the defendant was present or not, as there is nothing to show that his presence was necessary, cannot have any thing to do with the issue, and it would be contrary to all rules to reverse a judgment for an immaterial error.

It is also assigned as error, that the court erred in the charge to the jury. The only charge put upon the record as having been given by the court, was that if the jury believed from the testimony that Calvin Smith was present at the meeting in April, 1826, or at any other time assented by words or acts to the payment of the requisition made, that he was legally liable. To this charge, there can be no objection. There is nothing in the record to show that his assent was necessary. The call or requisition may have been made by the directors, under the authority of the by-laws, and of these laws we can know nothing, as they have not been placed before us. If made under such authority by the 'directors, it was binding without his assent. 1 Caines’s Reports, 381.

The next error assigned is, that the court refused to grant a new trial. All the reasons assigned for a new trial that are at all important, are embraced in substance in the points already noticed, except the alleged surprise which was occasioned by the ruling out of a deposition, which, it is said, was used on a former trial. It is the business of a party who takes depositions to see that they are regularly taken, and if they were not, it cannot be a ground of surprise that they were ruled out. The deposition alluded to was ruled out, because there was no affidavit amongst the papers, and the affidavit of R. M. Gaines, Esq., does not state that there ever was such an affidavit made, but only that he was induced to believe there was, from the fact, that the deposition was used on a former trial. This is by no means sufficient to establish the fact, that the deposition was regularly taken. It was the duty of the party to be prepared for trial, and that he was not, can only be attributed to his own laches, and surprise produced by the laches, of the party, is never a good cause for a new trial. Smith v. Morrison, 3 Marshall, 85.

But the deposition is not before'us, nor any fact testified to by the witness, and it may be, that it was wholly immaterial to the issue; and if so, it would not present good cause for a new trial, if the party was even surprised by the rejection of it. When application is made for a new trial, on the ground of newly discovered testimony, the party .must show what that testimony will be, so that the court may judge of its materiality, and if it be immaterial, the new trial will be refused. And so it should be, when testimony is ruled out. The appellate court can only judge of the merits of a motion on .this ground, by knowing what testimony the party had been deprived of.

It is further assigned as error, that the court received the corporation books as evidence. We have already decided that the books were sufficiently proved to justify the admission of them;, as the books are not before us, we cannot judge as to their admissibility, on the ground of matters contained in them. It is possible that if they were subject to inspection, objections might appear. In them, the by-laws and regulations of the company, are no doubt contained, and the liability of the defendant might possibly be varied, but as it is, we have to judge of that liability from the subscription paper. This paper contains a positive and express promise to pay a certain sum,. which is binding on the party, and in this particular, it differs from the cases cited from 6 Mass. Rep. 40, and 8 Mass. Rep. 136. In these cases it was only an agreement to take a certain number of shares in Turnpike companies, and there was a provision in the statute, that if the subscribers for stock failed to pay the assessments, their stock was to be sold. ' The remedy consisted in the power to sell in case of failure to pay, and the subscription papers did not contain express promises to pay, but only an engagement to take stock.

Hence it was held, that there was no other remedy, but by sale of the stock. It was admitted that if there had heen an express agreement by the corporators to pay, that an action could be sustained on the agreement. Smith would come clearly within this rule, because he has made an express promise to pay a certain surn for a certain purpose, in such instalments as should bé required by the directors.

I see nothing in this case, that in my opinion will justify a reversal of .the verdict. It must be affirmed.  