The weekly Panola star. [volume] (Panola, Miss.) 1857-1881, 1866-08-04
FmM hffHNH Nd HfHIIl
lIefh tea W ne lllzk lgaH 4
IffHfs HHa tHHfafs
tfhH ffnu. iHHG


lfH'llHt ~ pnmils lsUfy n0ie Nv
'Iej myahlo NJ ilie piaihiif. md
nude hy ihe dehaigHi IL whlet
ielim ihe deGnflhni tirHial I nm
issaalpsii. ahi 2 That ihe epnslisu
lifh N The noie WIS The Durlaae "A
n mme w Me defendant ffum ihe
plaintiff. delivered n ihe dffndini.
md that h sns agreed befeetn the
mftiea n tle tinH n The saie, and n
The oSeeuiiun ~ ile nmo. That II Ne
defendant, during lllo en.uing winlff.
'hmild puftlftse a eefiain sleammill
IN The slime eunniy, the plaintiff
would take buek the mule, aud give
np The noie, and nyefring that, aImt
The If February thereafter. the de.
lendant purchased The saw mill, aud
shortly thereafter, within feasann.
ble iimc, that he informed the plain.
iiil of said purchuse, aud dcsird him
70 take buck said mule aud give ~
The note, which plaintiff upon sid
demand agreed 10 do, but which he
failed ~ de- ut that time, and suhsc
qnently, about the 1T NJ Ociolmr,
1851, he agnin tried To take hack the
mule, but he has wholly iailcd aud
refused To do so further avcrring
that he has alway. since the Iairchnre
of said awmIll been ready 10 give
up said mule. The plaintiff replied.
admitting that Il WIS agreed that Il
the defendant should purchase the
sawmiIl, as alleged, then the mule
should be delivered up to the plain.
i'll, and that the defendant informed
the plaintiff Of his purchase Of the
sawmill, but denies that defendant
ever rendered or produced the mult
for delivery, aud alleges that defend.
ant received the mule at the time ~
sale and has used and worked him
ever since, and now has him. Th,
defendant rcjoincd denying that h,
was bound 70 tender to the plaintiff
the mule, and averring that the con
tract was that the plaintiff was /,
take back the mule upon the happen
f ing of the contingency mentioned il
the plea.
The verdict being for the plaintiff
the defendant moved for new tria
on various grounds; the motion wa
, overruled, and the defendant there
) upon took his bill of exceptions, AM
brings the case here.
The first error insisted on is tina
. the court allowed the plaintiff I
give evidence contradictory TO III
facts stated in the affidavit in behaI
r of the defendant, offered for a con
tinuance Of the cause; on which aiii
davit the plaintiff admitted the fact
contained therein, and thercupon th
/ trial was proceeded with, and III
e affidavit was read in evidence to th
, jury.
! This question is argued by couns'
t as II the plaintiff had merely ad
= mitted the affidavit as evidence, q
4 that the affidavit should be receive
} as, or instead of, the testimony of tn
absent witness, or the like. II thr
had been the character Of the admi,
sion, we are Of opinion that il woul
, have been competent to introdut
, testimony to contradict il. The cou
, has never sanctioned the rplc that, !
! civil cases, the admission of such
statement, under such circumstance
|, precludes the party admitting il froI
controverting its statement by cv
dencc; nor do we think that such
rule would he sound. IL has bee
/, held that il was not competent To d
~ in criminal cases. Dominges V
The State, 7 $. &. NJ, 475. An
4 this rule, even in criminal cases, hi
! since been altered by statute 50 thi
. the affidavit shall only have sue
i effect as is made by the witness h
fore the jury. Rev. Code, 622, ar
!, 1903. As no similar provision is mac
= by statute with reference to civ
!, cases, il would appear that the Lcgi
!, lature intended only to change Il
!, !. rule Us held by this court; and as
! such rule had been held in regard
" civil cases, that il was not nccssal
to prescribe any rule or make ar
y provision as TO such cases.
y This legislative rule appears
l. re,ognize a principle which We thir
/" should be applied as well to civil
!, to criminal cases, and that il is, VIII,
/" = the statement is simply admitted
= :, evidence by the adverse party, that
!. should have no morr effect than
= the same testimony had been Civ
- - by the witness IN person before {
~ jury.
" But the admission 10 this case we
:, = inrthcr than this. The plaintiff a
- - mitted The facts contained in said ,cr
!. - ten statement, and upon that admissi
4 the defendant went 10 trial, and th'
:, facts were material TO the issue. ri
was not merely an admission that |
absent witness would have tcstiii
as stated in the PAPER II he had ts
ln in court, or that the statements
he the paper should he read in eyiden
" II was an admission In open cot
ed for the purpose of the trial u
in pending, that The Jacts as stated
'r- the paper pere true; and this clea
en- precludcs the plaintiff from int
mr. ducing testimony to show thai
'm statements Of the paper were not ir
at yet such testimony was intrcdu
W aud the jury fourd accorliag 10 il
sm Upon the introduction Of iesiir
gh ny by the plaintiff 10 contradict III
we statements the defendant object
rse but the court oyerruled the object
we aud allowed the plaintiff to INF
ed duce surh testimony. This was
'sr allowable under The broad adiniss
lry Of the plaintiff. and the court er
ite in admitting Il.
a~..-.f .~xs.-. A. ..~s~o<.sl In r.