Sproule v. Samuel

Citations

• 5 Scam. 135

Syllabus

<p>Error to Morgan.</p> <p>1. Writ of error — objection to exercise of right, when. An objection to the right Of a complainant to bring a writ of error, upon a decree of foreclosure of a mortgage, after having executed the decree, by selling a portion of the mortgaged premises, must be made (if it can be available at any time) by plea in bar of the writ. It is too late to take such an objection after the defendant has joined in error.</p> <p>2. Witness — interest as defendant. The mere fact that a person is made a defendant to a bill in chancery does not necessarily render him an incompetent witness i.r the suit, as to matters in which he has no interest. [*136]</p> <p>3. Deposition — suppression. A deposition of one of several defendants in a chancery suit will not be excluded on the hearing, merely because it was taken without leave of the court. The court can as well judge of the admissibility of the deposition when presented, as when applied to for leave to take it.</p> <p>4. Witness — competency of casual defendant. A filed his bill in chancery to foreclose a mortgage, and made C, a tenant in possession of a portion of the mortgaged premises, a defendant. C'answered the bill, admitting the allegations contained therein, and alleging that he and another person had made a contract with the mortgagee for the purchase of a portion of the mortgaged premises, and praying that his rights might be protected in any decree that might be made. At a subsequent term of the court, C applied for leave to file a supplemental answer, setting out,.new matter arising subsequently to the filing of his former answer, by which he disclaimed all interest in the mortgaged premises. The complainant objected, and leave was refused. C s deposition was taken in the cause, which was objected to on the part of the complainant, upon the ground of C’s interest. In his deposition he disclaimed all interest whatever, except that he was to remain on the premises until the next fall, or until he