
    
      TRACY vs. TUYES & AL.
    
    Appeal from the court of the first district.
    When communication party months before trial, mentante reiiedUon *⅛ defence_he cannot ’ object that he was sur rised by its introduction.
   Porter, J.

delivered the opinion of the court. The petition states that the defendants received from one Henry Stark a quantity of n . goods to sell on commission, the proceeds of which they were directed to pay over to the plaintiff, and tho’ often requested they have refused to do so.

The defendants pleaded the general issue, and further averred that the funds of Stark in their hands, had been attached in Tampico, at the suit of Curell, Lesassier & co.

The suit at Tampico was in the name of Harrison, Brown co., not Curell, Lesassier &, co., and on the defendants offering the record in evidence, it was objected, that it did not correspond with the allegation in the answer, and could not be received. Whereupon the defendants offered to prove, that the sui* tho’ nominally by Harrison, Brown & co., was instituted by them for the use and benefit of Curell, Lesassier & co.; and they further proved that the record offered in evidence had been communicated to the plaintiff’s counsel seven or eight months before, with a declaration from the attorney of defendants, at the time the communication was made, that it would be relied on in defence of this suit. The court refused to admit proof of the action having been brought for the use of the persons named in the answer; and notwithstanding the evidence of the record having been communicated to the plaintiff’s counsel, rejected the transcript. The defendants excepted.

It has been decided in the cases of Ralston vs. Barclay & co. and Ory vs. Winter, that when a perfect knowledge was shewn on the of the party opposing the introduction of evidence, that it would be introduced and relied on, he could not successfully resist it, on the ground that it was contrary to the allegation in the pleadings. We cannot in any respect satisfactorily distinguish these cases from that before us, and the cause must be remanded. We think the doctrine established by those decisions, a salutary one. The more judicial proceedings can be simplyfied, and freed from technicality, the better the ends of justice are promoted. The object of the rule invoked by the appellee was to prevent parties being surprised at the trial, by testimony of which the pleadings afforded no warning.— But when notice is given of the particular defence to be relied on, and the testimony too which will support it, the case forms an exception, and does not come within the reason on which the rule was established. The argument urged in this case, of the information furnished by the appellant, not having put the appellee on his guard, because he knew the paper could not be introduced under the pleadings, would prevent the doctrine established by this court from applying in any case. He ought to have known that when he had such previous notice of it as enabled him to meet it, that it could be given in evidence.—6 Martin 649, vol. 4, 277.

It has been contended that even admitting the record could be read in evidence, on the ground just stated, it was still inadmissible because it did not shew such proceedings in Mexico, as would authorise the court sustaining the defence set up. This objection is ter the effect of the instrument, not to its legality as evidence, and the influence these considerations should have on the final decision of the case, can only be decided in this tribunal, after a trial has been had in the court below, on all the legal evidence there offered.

It is therefore ordered, adjudged and decreed, that the judgment of the court below be annulled, avoided and reversed ; and it is further ordered, adjudged and decreed, that this cause be remanded, with directions to the judge a quo, not to reject the record of a suit in Mexico by Harrison, Brown & co. vs. Henry Stark; and it is further ordered, that the appellee pay the costs of this appeal.

Ripley Sp Conrad for the plaintiff—Rustís for the defendants.  