
    No. XI.
    Joseph Harlan v. John Baker, Use John Welch.
    (See .)
    
      Apfeal from Robertson County.
    
    
      
      .—Harlan v. Baker, p. 578.
      If instructions given by the court are defective in omission special charges should be requested. Converse v. McKee, 14 T., 20; Robinson v. Varnell, 16 T., 382; Cole v. Cole, 17 T., 4; Linn v. Wright, 18 T., 317; Bast v. Alford, 20 T., 226; Fowler v. Waller, 25 T., 695; Powell v. Haley, 28 T., 56; Simonton v. Forrester, 35 T., 584; Robinson v. Davenport, 40 T., 333; Johnson v. Granger, 51 T., 42; Hawkins v. Cramer, 63 T., 99; Hays v. Hays, 66 T., 606; T. & N. O. Ry. v. Crowder, 70 T., 222; Currie v. Gunter, 77 T., 490; Mayer v. Walker, 82 T., 222.
    
   JONES (William J.), Justice.

—On the 12th day of June, 1838, Joseph Harlan executed his note to John West or bearer for $300, payable as soon as said West could make him a good and sufficient title to one-third of a league of land. The plaintiff in the court below avers that West, oftentimes before the institution of the suit, offered to make Harlan the title stipulated in the bond (produced on the trial in the district court and referred to in the note sued on), but which the appellant refused to accept. The land certificates (described in the bond) were placed in the hands of appellant for location, entry and survey.

The plaintiff below further avers that Harlan not only neglected and refused to perform his part of said agreement, in preparing the surveys of the land for patent, but willfully abstained therefrom to avoid the payment of his note.

The note sued on was assigned by the payee to John Baker on the 24th day of October, 1838.

The defendant filed a general denial.

The agreement of West and Harlan, produced on the trial below, contains mutual covenants. The former obligated himself for the consideration of $555.37 (of which the note in suit was part) to make a good and sufficient title to the latter for one-third of a league of land, as soon as the patent could be obtained. Harlan was required in the bond to locate the land within the time of preference given to first class of head-right claimants, unavoidable accidents excepted.

John West, the payee of the note, was offered by the appellee as a witness, under a full release from the plaintiff in interest of all responsibility in consequence of his indorsement of the note. The defendant excepted to his testimony upon the ground of interest, which was overruled by the» court.

It was proved that one of the certificates, No. 84, was deposited in the office of the county surveyor of Robertson County, and that under it the defendant had made a fractional survey on the 10th day of January, 1841.

The jury found for the plaintiff the full amount claimed in his petition.

The first ground of error, assigned by the appellant, is the introduction of the original payee of the note as a witness in the court below, without a full release from the plaintiff of record for costs, as well as principal of suit and all responsibility which might subsequently arise; and that the release executed is not a full and entire discharge of the disqualifying interest.

The second'cause of error assigned is, that the court below did not instruct the jury that the obligation of the defendant to locate land related to one only of the certificates mentioned in the agreement of West and Harlan.

Upon the first ground of error the general rule of law is, that the objection to the competency of the witness on the score of interest or responsibility is removed by an extinguishment of such interest or responsibility, through the means of a release executed by those who would have a claim upon him.

Another principle of'law equally well established is, that evidence can not be excluded by refusing assent to a release tendered to a witness from the party who holds the right to discharge him from responsibility, if offered before the witness has delivered his testimony.

A release of all the liabilities of the witness, arising from or connected with the principal cause of action, is a full release of all the interest which the witness had or could possibly have of a pecuniary character, or that would under the law exclude his testimony. Any interest, by way of desire to see the plaintiff succeed, must go to his credibility, and not to his competency.

The release in the case before us is, “from all liabilities which he (the witness) may be under to me (the plaintiff in interest) in consequence of his assignment or indorsement upon a certain note (the note sued on) given by Joseph Harlan on the 12th day of June, 1838, to John West, the witness;” and goes on to set forth the amount of the note and the consideration for which it was given. This, then, is the release contemplated by the law, and it is a total- discharge from all liability to pay the sum sued for (costs included) to the plaintiff in interest, under any possible contingency.

Another objection taken by the appellant, as connected with the first error assigned, is that the release, if sufficiently comprehensive in its terms, was not signed by the proper party to the suit.

The language of the law is, that the release shall come from “the party who would have a claim upon the witness.” 1 Starkie, 125. This note is payable to John West, or bearer. Who, then, is the party in this case, to set up a claim against the witness, if there had been a failure to recover against the appellant? The bearer, John Welch, surely. Then the bearer, John Welch, was the only proper person to execute the release.

We can not travel beyond the record to determine whether the second assignment of error (that the court failed to give the proper instructions to the jury explanatory of the evidence) can more avail the appellant than the point already disposed of.

We do not discover from the statement of facts sent up by the district judge that any special instructions were asked and refused upon the point made in the appellant’s brief. The record contains no charge upon the law of this case. We must then presume that the judge gave the jury all the instruction as to the law which he considered necessary, as no exceptions appear to have been taken at the trial.

The instrument sued on and the agreement of the parties in relation to the location, survey and patent of the land, were matter of evidence before the jury. The bond or agreement of the original parties was in itself sufficiently explanatory, to the ordinary understanding, of the obligations of the appellant. The survey of the third of a league of land (to which the payee of the note bound himself to make the appellant a title) was, by the provisions of said agreement to be made with two land certificates, Nos. 84 and 85. The latter not containing the 1481 acres which were to be conveyed, the deficiency was to be taken from the former certificate. Hence the necessity and propriety of evidence relating to certificate No. 84, which the appellant assigns as error.

These were the facts gathered by the jury from the papers submitted to them, as we understand from the record; and if there were any ambiguity proper to be removed by the judge which was not done, it was the duty of the appellant’s counsel to have required a special charge of the court upon the matter thus brought to its notice, which, if refused, might have been appealed from.

Where, the contrary is not made to appear from the record, the appellate court will presume, that a full charge upon all the law of a case was given by the judge of the district court on the trial below.

It is the duty of counsel when the law of a case, in their opinion, is not fully defined to the jury, to require of the court, in writing, a special charge upon the point or points; and if refused, to bring them up by way of exception or appeal. And if given and objected to by the opposite counsel, to be alike noted by him and brought up for revisal.

It is then considered by the court here that there was no error in the proceedings of the court below, and that the judgment be fully affirmed with costs.

Affirmed.  