
    William Arthur vs. John S. Mitchell, use of Joseph D. Beers.
    Whether an attorney at law, who receives a commission upon the sum he may collect in a pending suit is a competent witness for his client in that suit, or not; yet, if an attorney be offered as a witness for his client, the record must show affirmatively that he is to receive such commission, before the high court of errors and appeals can pass upon his competency.
    Where an attorney, having in hands anote for collection, receives from the maker a certain sum, which, upon the trial of a suit upon the note, the maker seeks to have credited on the note, the attorney is a competent witness for his client in the case, because his interest is balanced, he being liable either to plaintiff or defendant, according to his testimony.
    Where an attorney, who had received a note for collection and had sued upon it, was instructed by his client to withdraw the suit, upon the maker of the note paying his fees, and the maker did so, and the suit was dismissed, and the attorney, at the request of the maker, wrote a letter to the person to whom he had been directed by his client to send the note, in which letter he stated, that the maker of the note had paid the fees to be credited on the note; and, in a subsequent suit on the same note, the maker plead, as an offset, the sum paid the attorney for his fees, and produced the attorney’s letter in proof of the offset; and the attorney thereupon testified, that the payment of the fees was the condition on which the first suit was to be dismissed, and was not to be a credit on the note, and that he had written the letter as he did at the instance of the maker of the note ; and the jury found the full amount of the note; it was held, that the maker of the note was entitled to a new trial, on the ground of surprise at the testimony of the attorney; he had a right to rely on the attorney’s letter, as an evidence of the credit, and when the testimony of the attorney reduced an unqualified credit to be a mere condition, he ought to have been allowed the opportunity of meeting (as affidavits showed that he could meet) the change thus produced by the witness in the aspect of the credit, as originally given.
    In error, from the circuit court of Marshall county; Hon. Hugh R. Miller, judge.
    John S. Mitchell, assignee of Street and Mitchell, for the use of Joseph D. Beers, by Lucas & Lane his attorneys at law, sued William Arthur on a note for $1102.09, due on the second of December, 1839. The suit was brought in June, 1843. The defendant plead non assumpsit. At the March term, 1845, the cause was continued on the affidavit of Arthur, that he was entitled to a credit of one hundred dollars on the note; which he would prove by John H. Dunlap of Tennessee.
    After various proceedings, a trial was had at the June term, 1846, when the jury, on the 10th of that month, found a verdict for the plaintiff, for $1474.52.
    On the 26th of June, Arthur moved1 for a new trial; the motion being overruled, he filed a bill of exceptions, from which it appears, that on reading the note sued on, the plaintiff rested his case; the defendant then- read the receipt of John H. and James T. Dunlap, at one time attorneys for the plaintiff, and who had the note for collection, in which they acknowledge the receipt of certain collateral papers furnished them by Arthur, and state, that fifty-six dollars had been paid by Arthur to Lucas & Lane, and forty-four dollars to Dunlap. And also a letter from Lucas & Lane to John H. Dunlap, dated May 1, 1841, enclosing the note of Arthur to Dunlap, which letter was as follows:
    “John W. Dunlap, Esq., Dear Sir. Enclosed, please find W. Arthur’s note, with the explanations afforded by the respective communications of Messrs Arthur & Beers, a copy of which is herewith transmitted. W. Edmonds’s note will be handed you as collateral, and when realized we are to remit, as you wall see by Beers’s communication. Any instructions in the intermediate stages of the progress of this business, you will look to the parties in New York for; as we have no discretion, nor further agency in it, than to simply remit when collected. Mr. Arthur has paid our fee, say fifty-five dollars and postage, one dollar, which will be charged to Beers, and credited on the debt due from Arthur to Beers; please send receipt for the note as Beers holds ours, and it is contemplated, as you will see, that the remittance eventually be made by us.
    Lucas & Lane.”
    The plaintiff then offered Lucas as a witness, to prove the nature of the payment of the fifty-six dollars, and explain the letter of Lucas & Lane. The defendant objected to his competency, but the court allowed him to testify. He stated that Beers, in 1841, placed the note for suit in the hands of Lucas & Lane; they sued Arthur upon it; Arthur assured witness, if the note was sent to Tennessee, it would soon be paid out of debts due him there. The witness obtained authority from Beers to dismiss the suit in this state, and sent the note to Tennessee on Arthur’s paying Lucas & Lane’s fees; Arthur did so, and at the same.time informed witness there was an agreement between himself and Beers, that if the money was paid soon after the note reached Tennessee, the fee paid witness was to be credited on the note. Witness had no other evidence of this agreement but Arthur’s statement; he believed it; and as Arthur told him, Dunlap was a very particular person, and would not allow him the fifty-six dollars without authority from the witness, and thus he would lose the amount. The witness agreed to write to Dunlap to allow the credit on the money’s being paid, and witness accordingly wrote three or four letters to Dunlap, and none of them suiting Arthur, he told him to frame a letter himself as he wished it; Arthur did so, and wrote all the concluding part of the letter sent to Dunlap, and witness copied it and handed the letter to defendant who carried it off. Two or three years after the note was returned to him for suit again; he was about to sue upon it in the federal court, when Arthur promised if he would sue in the state court he would throw no obstacle in the way of a judgment. He sued in the state court, and the result had been all the opposition in Arthur’s power. On cross-examination, he stated that he had enclosed no letters to Dunlap in his letter sending the note of Arthur to him.
    
      This was all the evidence.
    The bill of exceptions contains the affidavit of Arthur in behalf of the motion for a new trial on the ground of surprise, in which he states at length the causes which led the first suit to be dismissed and the note sent to Tennessee, and contains' copies of all the correspondence on the subject, including the letter of Beers to Lucas & Lane, instructing them to dismiss the suit and send the note to Tennessee, which letter concludes as follows: “We have concluded to accept Mr. Arthur’s proposition, thinking it most certain to secure the eventual payment of our claims; should you see nothing in this arrangement to affect my interest injuriously, I will thank you to have the same carried into effect, and to forward the note of Arthur to John H. Dunlap for that purpose, retaining out of proceeds of claim, when collected, the amount of your charges in the business, and you remit the residue to me. Very respectfully, &c.
    “ J. D. Beeks.”
    The affidavit of Arthur details at length the various steps in the progress of the suit, and undertakes to explain the mistake into which he swears that Lucas bad fallen. He denies the truth of the evidence of Lucas, and states that Lucas confounds the copying by Arthur of the correspondence enclosed by Lucas to Dunlap with the writing the letter to Dunlap. That he had supposed, until the trial, that there could be no difficulty about allowing him the credit on the note; he was astounded at the testimony of Lucas, and immediately after the trial wroté to Dunlap for the copies of all the letters sent to him by Lucas & Lane, which Dunlap immediately sent to him, and he had but just received them. The letter of Beers to Lucas &■ Lane, showed that Lucas was mistaken as to the terms on which he was to dismiss the first suit, and the copies enclosed to Dunlap by Lucas showed that Lucas was mistaken in stating that he'had sent no copies in his letter to Dunlap; that-the fact that these copies were in the hand-writing of affiant tended to explain the mistake that Lucas had fallen into as to affiant’s having written the latter part of the letter to Dunlap. He also states that Lucas did not send the letter to Dunlap by him.
    
      The affidavit at great length explains and details these circumstances, the reason why the fifty-six dollars was paid Lucas at the time, why these letters were not produced and had in readiness at the trial, and also why affiant told Lucas to sue in the state court and he would interpose no obstacle. He then thought the $ 100 was credited on the note.
    Arthur prosecutes this writ of appeal.
    
      W. F. Stearns, for plaintiff in error,
    argued these points at length:
    1. That Lucas was an incompetent witness. He cited Fuller v. Wheelock, 10 Pick. 135; Emerton v. Andrews, 4 Mass. 653.
    2. A new trial should have been granted on the ground of surprise. On this point, Mr. Stearns reviewed the testimony.
    3. That the verdict was against testimony; Lucas’s evidence was contradictory, and not sufficient to overthrow the positive statement of his letter.
    
      Watson, for appellee,
    Insisted, 1. That as no exception was signed at the time that Lucas’s evidence was admitted, the point could not be after-wards objected. He cited 1 Plow. (Mi.) R. 572; 7 Ibid. 164, 346; 9 Wheat. 651; 6 Wend. 268; 3 A. K. Marsh, 360.
    2. That Arthur had plead non assumpsit, and filed no bill of particulars, and was therefore not prejudiced by Lucas’s testimony, as he had no right to prove an offset. H. & H. 590, § 7; 2 S. & M. 473, 514; 4 Ibid. 175; 4 How. (Mi.) R. 404.
    3. Lucas was a competent witness; in no wise interested; if the fifty-six dollars had been allowed, it wouldhave been Beers’s, not Lucas’s loss.
    4. A sufficient ground for new trial on account of surprise was not made. Arthur knew the credit would be contested; his affidavit for a continuance and former trial showed him that.
    
      
      D. C. Glenn, for plaintiff in error, in reply.
    1. The objection that the exception to the admissibility of Lucas as a witness, was not taken at the proper time, is not tenable, and the authorities cited do not apply. H. & H. ch. 40, sec. 52, p. 493.
    2. The objection that no bill of particulars was filed, was not made below, and will not be regarded here.
    3. Lucas was incompetent. 4 John. 493; 1 Taylor (N. C.) Rep. 5 ; 2 Dallas, 50 ; 1 Dudley, 81; 1 Mass. Rep. 93; 3 Ibid. 82; 4 Ibid. 488, 653; 13 Ibid. 199; 2 McCord, 375; 5 Conn. 258 ; 7 Hals. 240.
    4. On the ground of surprise the new trial should have been allowed. Mr. Glenn elaborately reviewed the proof and the affidavit of Arthur, and insisted that the correspondence exhibited in the latter wholly disproved Lucas’s evidence, and would necessarily, on another trial, change the result. He cited Palmer v. Popelstone, 1 Hawks, 307 ; 2 J. J. Marsh. 575 ; 1 Bos. & Pull. R. 427.
    5. The verdict was contrary to the evidence. Lucas’s testimony should have been discarded by the jury; it is incredible in itself, self-contradictory, and disproved. This point was also discussed at length.
   Mr. Justice ThacheR

delivered the opinion of the court.

This was a motion for a new trial, upon the grounds of the incompetency of a witness and surprise upon the trial.

One of the matters in issue upon the trial was the legality of a credit of fifty-six dollars, claimed by the defendant. The promissory note, the ground of the action, rvas originally put in the hands of Lucas & Lane, attorneys at law, for collection, and suit instituted. It was afterwards directed by the beneficiary in the note, Beers, to be sent to Dunlap, upon an agreement of the parties as to its payment. Before this was done, Arthur, the maker of the note, paid Lucas & Lane the attorney’s commissions and postage, amounting to fifty-six dollars, which, upon the trial below, he claimed as a credit. Upon the trial, in support of this set-off, he produced a letter of Lucas & Lane to Dunlap, which concluded as follows: — “Mr. Arthur has paid our fee, say $55, and postage $1, which will he charged to Beers, and credited on the debt due from Arthur to Beers. Please send receipt for the note, as Beers holds otirs, and it is contemplated, as you will see, that the remittance eventually be made by us.”“ The plaintiff then offered Lucas as a witness, who testified that the credit mentioned in the letter was not absolutely to be made, but that the directions of Beers, who had made an arrangement with Arthur, here, to withdraw a suit then pending upon the note, provided Arthur would pay the fee of Lucas & Lane, and that this was the only consideration upon which Lucas & Lane would consent to the withdrawal of that suit; that Arthur consented to this, but added that he had an understanding with Beers, that if the amount of the note was promptly paid in the hands of Dunlap, that then the amount of fifty-six dollars should be credited on the note, and desired Lucas & Lane to communicate the fact to Dunlap; and that the witness undertook to write to Dunlap, as desired, but his statement of the agreement not satisfying Arthur, he finally permitted him to frame in his own language the entire latter part of the letter to Dunlap, as above quoted, which he copied and transmitted to Dunlap.

The testimony of Lucas was objected to on the. ground of interest. The only possible interest that Lucas could have in such a state of the case, would be to increase the amount of the judgment in the sum of fifty-six dollars, thereby to obtain his commissions as attorney upon that enhanced sum. But, if it were established that the regular commissions of attorneys were a good ground to exclude them as witnesses, the record in this case is silent as to the material fact that Lucas & Lane were to become entitled to commissions in this particular case. There is nothing that exhibits that Lucas had any interest in the result of the suit. At all events, his interest was balanced, and his testimony might subject him liable to plaintiff or defendant, according to his testimony and the true state of the facts.

But Arthur might well depend upon the letter of Lucas & Lane, which authorized an absolute and unconditional credit to be made upon the note, and, although Lucas was competent to explain his own letter, still he might fairly charge surprise upon the trial, when he found the unqualified credit contained in the letter was proved to be in point of fact coupled with a condition, and he should have been permitted an opportunity to meet this charge in the aspect of the credit, as the witness had originally presented it by his own letter. Under all the circumstances of this branch of the case, we think the court below erred in pver-ruling the motion upon the ground of surprise.

Judgment reversed, and new trial awarded.  