
    L. B. Wright et al. vs. The Bank of Alabama.
    In an action upon a judgment rendered in another state, if the bill of exceptions taken to the admission of the record in evidence, does not embody the record itself, this court will not notice it, even though a record answering the description of the one sued on is inserted by the clerk in the transcript for this court.
    Where a bill of exceptions is taken to the admission of a deposition, on the ground that it was a deposition not taken in the pendji^sijiiJ^ajit in another suit between the same parties, and the deposition exceptions, this court will not disturb the verdict.' bill of
    Where a bill of exceptions is taken to the refusal ójLthe r;ourt to granf! trial, but does not embody the evidence, or setófmli aMyt,fij the court can act, the judgment of the court bei
    In error from Panola circuit court; Ho? judge.
    The President and Directors of the Bank of the State of Alabama, sued Little Berry Wright, Michael Wright, and Jesse C. "Wright, in an action of debt founded on a judgment of the county court of Tuscaloosa county, in the state of Alabama. The defendants plead, 1. Nul tiel record. 2. That the plaintiffs had sued the defendants previously in the same court, in an action of assumpsit for the same cause of action and a judgment had been rendered in their behalf.
    Issue being taken on these pleas, the first was submitted to the court, which gave judgment for the plaintiffs; and the second to a jury, which rendered a verdict for the plaintiffs.
    The record contains the following bills of exceptions, viz.:
    “Be it remembered that on the trial of this case before the Honorable James M. Howrey, judge of the 8th judicial district of said state, sitting for the county of Panola, at May term, 1845; the defendants moved to exclude the record in this case, under the plea of nul tiel record, which motion was overruled by the court and the record permitted to be read, to which the defendants except, and pray that said plea and record be made a part of this his bill of exceptions. The plaintiffs also offered to read the deposition of William Horne, that was taken and read upon the trial of another cause between the same parties, in this court, which was objected to by the defendants, and the objection overruled, and the deposition permitted to be read to the jury; to all of which the defendants except, and pray that said bill of deposition be taken as a part of this his bill of exceptions, which is signed, sealed and made part of the record before the jury retired, &c.”
    “Be it remembered that after the finding of the jury in the above case at this term of the court, the defendants moved the court to set aside the judgment and grant a new trial for the reasons stated on the motion docket, which motion was overruled by the court, to all of which the defendants except, and pray, &c.”
    There were transcribed in the record the transcript of a judgment answering to the one on which the action was brought; and also a deposition similar to that described in the first bill of exceptions, but neither the record nor deposition was included in the bills of exceptions, nor otherwise referred, to than by the prayer that they might be made parts of them.
    When the motion for a new trial was overruled, the defendants sued out this writ of error.
    
      Harrison and Vance, for plaintiffs in error.
    
      C. Miller, for defendants in error.
    1. No ground of objection to the admissibility of the record is set forth in the bill of exceptions, and as the record in question is not incorporated in this record, this court cannot but presume that it was properly introduced and read in evidence.
    2. The only ground of objection taken to the deposition is found in the first bill of exceptions, in the following words, viz.: “ The plaintiffs also offered to read the deposition of William Horne, that was taken and read upon the trial of another cause between the same parties in this court.” Now it is well established that these are not valid objections. A deposition taken in one cause may be read on the trial of another with these limitations : 1st. The parties must be the same or in privity. 2d. The question in controversy must be the same. 3d. It must appear that the testimony, if differentf would have been prejudicial to the party introducing it. 4th. That the verdict and judgment rendered in one case would be evidence in the other. 1 Stark. Ev. 253 ; 2 How. R. 716. If the bill of exceptions show anything, it shows that this deposition possessed at least two of the essential requisites to its admissibility, viz.: the legal existence of the suit in which it was taken, and the identity of the parties in both suits.
    It is not even suggested that the deposition wanted the other essentials. We must presume that it was presented in the court below, possessing all the qualities necessary to its admission, or that it would have been rejected, and that presumption is perfectly consistent with everything to be found in the record.
    The court will observe, moreover, that it does not appear when the second exception mentioned in the first bill was taken. It cannot therefore be of any avail. Wilson v. Owens, 1 How. R. 126; Phillips v. Lane, 4 How. R. 122.
    It is impossible to consider of the objections to the record, as the judgment and proceedings alluded to are not embodied in either bill of exceptions. See Rankin v. Halloway, 3 S. & M. R. 621.
   Mr. Justice Clayton

delivered the opinion of the court.

This, was an action of debt upon the transcript of a judgment recovered in Alabama. The defendants pleaded, first, nul tiel record, and secondly, that the plaintiff had theretofore impleaded the defendants for the same cause, in an action of assumpsit, in the same court, upon the trial in which a judgment had been rendered in favor of said defendants.

Issues were taken upon these pleas, the first of which was determined by the court, and the other by the jury; both in favor of the plaintiff.

Whatever the rights of the plaintiffs in error, the defendants in the court below, may have been, they are not set out in the record in such a way as to make them available.

There is first a bill of exceptions to the opinion of the court, in permitting the transcript of the record from Alabama to go to the jury; and yet the record is neither incorporated into the bill of exceptions, nor referred to in such manner as to identify it with the transcript which the clerk has sent up. The bill of exceptions in regard to the deposition, is subject to precisely the same remark. According to. repeated decisions of this court, they cannot be noticed here. Maulding v. Rigby, 4 How.; Carmichael v. Browder, Ib. 433.

There is nothing which purports to be a copy of the proceedings in the suit, mentioned in the second plea.

The bill of exceptions to the opinion of the court in overruling the motion for a new trial, does not embody the evidence, or set forth anything upon which this court can act.

The judgment is therefore affirmed.  