
    
      BERNARD & AL vs. VIGNAUD,
    
    
      ante 482.
    Jan. 1822.
    Rehearing denied.
    Seghers, on an application for a rehearing. This court has determined that the testimony of Fouque ought not to be rejected, on account of his affinity. To this decision the plaintiffs respectfully submit. But there are two other grounds of exclusion, on which they beg leave to call the attention of the court. The first, that Fouque is the vendor of the slaves on which they have a lien, and that therefore is excluded from being a witness in the cause. Partida 3, tit. 16, l. 19. This law stands unrepealed, and the point was never controverted by the adverse counsel. The second ground, is the liability of the witness to the costs of the suit. Phillips’ Evid. 46.
    
    It is true that the court have given it as their opinion, that the interest of the witness was too remote to affect his admissibility. But it is humbly conceived, that this remoteness relates only to the community between the defendant and his wife, daughter of the witness, and to the eventual right of the latter, to inherit under that community, one half of the property in contest.
    East'n District.
    Certainly the court did not intend to include in this remoteness, the interest of the witness as the vendor, nor his liability to the costs. To his interest as vendor it has been objected, that he would be equally liable to the defendant as to the plaintiffs. I leave it to the court to determine, whether such a distinction can dispense from the strict application of a positive law, whose context admits of none.
    I believe I have established the liability of the witness to the costs in my arguments. This liability has never been seriously controverted: the main objection raised against it by the defendant’s counsel was, that it ought to have been pleaded at the trial in the court below, when it would have been in the defendant’s power to execute a release, and thereby to remove the liability. And here I beg leave to turn the attention of the court to the bill of exceptions itself; it will easily he found in the record as there is but one. The contents of this bill will convince the court that the only objection raised against the admissibility of the witness, was on account of his being interested in the event of the suit, and that no release was tendered.
    The controversy on account of the affinity, grew out of the cause itself, not out of the bill, which therefore stands still undecided upon by this court. The liability of a witness to the costs of the action, or to any part thereof, is a ground of exclusion too well known in the rules of evidence, to require any further elucidation.
    I expect that the court, on re-examination of the cause, on the point of this liability, will find that the judge a quo acted correctly in rejecting the witness. I therefore confidently hope, that the plaintiffs will not be denied a re-examination of the cause on this point.— Were it otherwise, I would then beg leave to observe, that the court cannot stop there ; for if they will take the trouble of reading the final judgment of the court below, they will find that it has been rendered in favour of the defendant. Now, if I am right in my view of the case, a judgment in his favour can certainly not be reversed on a hill of exception taken by him, and for his sole benefit; nor would the court take upon themselves to affirm that judgment, to the prejudice of the plaintiffs and appellants, without inquiring into the merits of the cause.
   Porter, J.

The plaintiffs, by a petition for a rehearing, have again called the attention of the court to this case.

They complain that the cause has been sent back for a new trial, on an exception taken by the party who succeeded in the inferior court, without any opinion being expressed on its merits. But I think we did express an opinion on the merits, and that in the strongest possible way; for if we had thought with the district court, that the facts, as they appear on the record, authorised judgment for the defendant, we would not have done so vain and useless a thing, as to have remanded the cause for a new trial, to get up testimony which the party did not want.

They also complain that the court look no notice of their objection; that the witness was a vendor of the slaves, and responsible for the costs. I have, looked again, into the record, with the intention of delivering an opinion on the point, but I find the objection was taken before the inferior court, in such a manner that we are not authorised to consider the incompetently of the witness on these grounds.

The bill of exceptions merely states, that Fouque, father-in-law of the defendant, was offered as a witness, and that the defendant objected to him on the ground of interest.

The rule on this subject is very clear, and I had supposed, was perfectly understood in practice. It is the duty of a party objecting to the introduction of a witness, not merely to state that he cannot be permitted to testify, but to declare why he is incompetent. This is required, that his adversary may have an opportunity of removing the objection. There are many cases which shew how strictly this rule is enforced. 3 John. 558. 4 ib. 467. 8 ib. 507. 3 Dallas, 422. In the language used in one of these cases, the party excepting, must lay his finger on the points which might arise either in admitting or rejecting testimony.

To object to a witness, because he is interested, is doing little more than to say that he is not a good witness. The nature of the interest should be stated, in order that the adversary may not be entrapped by an objection so general, or left in ignorance of the real ground on which his incompetency is alleged, until it is too late, by a release, or otherwise, to restore it.

This case will illustrate the correctness of that rule, and the propriety of enforcing it; for the expressions used in the bill of exceptions, satisfy me that the objection was taken to the interest, as father-in-law. But if I am mistaken in this, I am clear he ought to have stated the particular grounds of interest.

I think, therefore, the rehearing should be refused.

Martin, J.

My opinion is still the same.

Mathews, J.

I concur in the opinion of judge Porter.

REHEARING DENIED.

Grayson for the plaintiffs, Livermore for defendants.  