
    PRESLAR vs. STALLWORTH.
    [action for contribution between sureties.]
    1; .Admissibility of record as evidence. — In an aotion.for contribution he* ■■ tween sureties, tlio record of the judgment recovered by the- common crodifcor against the principal debtor and the plaintiff, to which the defendant was no party, is admissible evidence for the plaintiff, to prove that sncli a judgment was rendered, and by way, of inducement to the evidence that he had paid the debt on which it was founded.
    8. Gonelusiveness of judicial decision. — A decision of the supremo court is the law of the case in which it was pronounced, and the principles settled by it cannot-be re-examined on a second appeal..
    3. Statute of limitations between, sureties.- — The statute.of limitations does not begin to run between co-suroties, until one of them has paid more than his share of the common debt; hence, it is no defense to an action for contribution, that the statute of limitations had barred a recovery on the original debt before the commencement of the action, and that the defendant had-never been sued on that debt.
    
      4t.,.Saiisfaelion and assignment of judgment. — If a surety pays a judgment against himself and his principal, and takes an assignment of it to himself, the judgment is extinguished, and he cannot, at law, be subrogated to the rights of the plaintiff as against a co-surety.
    8. Obj.ectioii to e-ompetenoy of loitness, when and hoio raised — A. general objection to a deposition, no specific cause being stated, does not raise the, question of the competency of the witness to testify; and that question cannot ho raised, for the first time, in the appellate court.
    6. Predicate for introduction of secondary evidence of note. — A promissory note, on which a judgment was recovered, having heen filed in the clerk’s office, with the other papers in the cause, the testimony of the clerk, to the effect that “ said note is not now on file in his office with the other papers in the canse, and he does .not know what has become of it,” is not sufficient proof of its loss to admit secondary evidence of its contents.
    Appeal from the Circuit Court of Choctaw.
    Tried before the Hon^C. W. Rapier.
    This action was brought., by William M. Stallworth, against Holden Preslar, to recover one half of the amount which the plaintiff had paid,, as the surety of Thomas R. Watts, on a judgment which Halsey, Utter & Co. had recovered against Mm and said Watts jointly; and was commenced on the 30th June, 1856. The case was before this -court, on appeal, at its June term, 1859, when the judgment of the circuit court was reversed, and the cause remanded. See 34 Ala. 505. The pleadings in the cause are stated ■at length in the former report; the pleadings on the second trial are not shown by the present record.
    The judgment in favor of Hulsey, Utter & Co. against Watts and Stallworth, was rendered in the county court of Monroe, at its January term, 1842, and was founded.on a promissory note, executed by said Watts, jointly with said Stallworth and Preslar, (who were his sureties,) dated the 11th July, 18-37, and payable on the 1st March next after date ; and the action was discontinued as to Preslar, wh® was not served with process. On tide 4th April, 18-54, • Halsey, Utter & Co. assigned said-judgment to one A. J.» Robertson j. and on the 21st April, 1854, in consideration of the payment of ene thousand dollars by plaintiff, Robertson transferred and.assigned it to him. 'This action was brought to recover one half of the amount so ■ paid by plaintiff
    On the trial, as the bill of exception shows,- the plaintiff read in-evidenee the depositions of A.. B,-Cooper and John Deloach, for the purpose of laying a predicate for the introduction of secondary evidence of the note, on which .the judgment in favor of Halsey, Utter & Co, was founded. Cooper was-the attorney of Halsey, Utter & Co. in that ■suit, and testified, “that said note was had and used on the trial, and was filed with the papers in said cause.” Deloach was the clerk of the circuit court of Monroe, having the custody of. the records of the old county court, and testified, “ that said note is not- now on file in his office, and he does not know what has become of it.” On this testimony, the circuit court admitted secondary evidence of said. note,, and the defendant excepted. The circuit court also permitted the plaintiff to read in evidence, against the defendant’s objections, a transcript of the record in the case of Halsey, Utter & Oo. against Watts and Stallworth, and the depositions of Joseph A. Halsey, Charles M. King, and A. J. Robertson; to the admission . of which evidence the defendant reserved several exceptions. Halsey and King were partners in the firm of Hal:sey, Utter & Co.., and Robertson was the person who ■ assigned the judgment .to plaintiff. All these objections were general, and specified mo particular cause for the .rejection of the evidence.
    “The court charged the jury, that if they believed, from •the evidence, that plaintiff and defendant signed said note .as sureties for Watts, and that judgment was thereon ren- -. dered against Watts and the plaintiff, and that afterwards, ■Watts being dead and insolvent, plaintiff paid and satisfied •said judgment, so as to discharge defendant .from liability,— .liis right of action against defendant for contribution -.accrued at the time of such payment, although the defendant had never been sued on the note:; and that the ■ statute of limitations could not avail the defendant, unless •■more than six years had elapsed since the payment of said judgment by plaintiff.
    “ The defendant excepted to this charge, and requested .the court to instruct the -jury — 1st, that if the defendant signed said note, and had never been sued, he could set nn> in this action any valid defense which he could make if he >had been sued by Blaise,y, Utter & Co., the payees in said mote; 2d, that if more than six years had elapsed since the .maturity of said note, the statute of limitations was a good defense against the note, and, .therefore, a good defense •.against this action ; 3d, that if Halsey, Utter & Co. assigned said judgment to A. J. Robertson, and Robertson assigned it to the plaintiff, such assignments .would subrogate the •plaintiff to the rights of Halsey, Utter & Co. under it, and ¡he could not recover for contribution — that he had the same ¡right of action against the defendant, under said assignments, that Halsey, Utter & Co. would' have had to sue on dhe note. The -court .refused each one of these charges, .and the defendant excepted,to their refusal.”
    The rulings of the court on the evidence, the charge given, and the refusal-of .the charges asked, are now assigned as error.
    
      Geo. F. Smith, for appellant.
   R. W. WALKER, J.

1. The record of the judgment in favor of Halsey, Utter & Co. against the plaintiff, was clearly admissible, to prove that such a judgment was rendered, and by way of inducement to the evidence that the debt on which it w-as- founded, and for which' the defendant was bound as co-surety with the plaintiff,' had been paid' by the latter. — Harrell v. Whitman, 20 Ala. 519 ; Troy v. Smith, 33 Ala. 471 ; Firemen’’s Ins. Co. v. McMillan, 29 Ala. 147.

2. The charge which the court gave the jury, is in strict accordance with the opinion pronounced wdien the case was-had before them 5. and the principles then settled.cannot-, now be re-examined. — Stallworth v. Preslar, 34 Ala. 505, and authorities cited.

3. As between sureties, the statute of limitations does not begin to run, until there is a right of actionand that does not accrue, until one of them.has paid the whole, or' more than his share, of- the common .debt. Hence, the discharge of one of the joint debtors, (by whatever cause,) from his direct liability to the creditor, does not relieve him, in law, from his obligation, of contribution to such of his co-sureties as have borne more than their just proportion of. the debt. — Stallworth v. Preslar, supra; 1 Parsons on Contr. 36 ; Peaslee v. Breed, 10 N. H. 489. The first and second-charges asked by the defendant, were, therefore, properly-refused.

4. Nor did the court err in refusing to give the last'charger’ asked by defendant. At law, it is well settled, that the payment of a judgment by, or its assignment to one of several defendants, extinguishes the judgment, although the defendant by whom it is paid, or to whom it is assigned, is a mere surety. A court of law cannot substitute such surety in the place of the plaintiff, and allow him to take out execution upon the judgment. The judgment is regarded as extinguished against all . — Bank of Salina v. Abbott, 3 Denio, 189 ; Hogan v. Reynolds, 21 Ala. 56 ; Lyon v. Bolling, 9 Ala. 466.

5. If it were conceded, that the witnesses, Halsey, King-, and Robertson, were incompetent by reason of interest, or under section 2290 of the Code, the objection could not-now avail the defendant. .The objection in the court below was a general objection to the entire deposition of each witness, — no specific cause being stated. Such an objection, if .available.for any purpose, does not raise the question of the competency of the witness to testify in the cause (Goldsmith v. Picard, 27 Ala. 142, 152 ; Phillips v. Kelly, 29 Ala. 632 ; Cunningham v. Cochran, 18 Ala. 480) ; and that question cannot be raised, for the first time, in the appellate court. As to whether tlie assignor of a judgment is tlie transferror of a contract within the meaning of section 2290 of the Code, see Smith v. Harrison, 33 Ala. 209.

.6, We-think, however, that the court erred in permitting the parol evidence of .the existence and contents of the note to go to the jury. The only proof of the loss of the note consists of the evidence of Cooper and DeLoach. The former was the attorney who attended to the suit in favor of Halsey, Utter & Co. against the plaintiff and Watts. He proves, that the original note was had and used on the trial of that case, and was filed with the papers. DeLoach is the clerk of the court in which the trial was had ; and he simply states, that the note is not now on file in his office with the other papers in the case,, and that he does not know what has become of it. Tlie general statement bj an officer into whose custody a particular.paper is traced, that the document is not now in bis office with the other' ‘.papers of the .case, and that he does not know what has become of it, is .too indefinite to satisfy the rule in relation to-the admission of secondary evidence. There should have been some more direct evidence of a search of the file for the note. — Millard v. Hall, 24 Ala. 209 ; Johnson v. Powell, 30 Ala. 113 ; Starkie’s Ev. (Sharswood’s ed.) 531-8 ; 3 Phill. Ev. (C. & H’s notes, 2 ed.) 1223-1231 1 Greenl. Ev. § 558.

Judgment reversed, and cause remanded.  