BUFFINGTON vs. COOK

BUFFINGTON vs. COOK. [action for money paid.] 1. Error without injury in refusal to suppress deposition. — The refusal to suppress a deposition on motion is, at most, error without injury, when the record shows that the deposition was not offered in evidence on the trial. 2. Admissibility of original papers as evidence of record. — The original paiiers in a cause are competent evidence, when itj does not appear that the final record has been made up. 3. General objection to evidence. — A general objection to evidence, a part of which is admissible, may be overruled entirely, since the court is not bound to separate the legal from the illegal portion. 4. Demurrer to evidence. — A demurrer to evidence, on issue being joined thereon, is an admission of every fact which the testimony tends to establish, or which might be inferred from the testimony by the jury; and judgment must be rendered accordingly. Appeal from the City Court of Mobile. Tried before the Hon. Alex. MoKcnstry. This action was brought by Major Cook, against Thomas M. Buffington, to recover a portion of the money paid by the plaintiff on a joint execution against himself and the defendant, in favor of one E. P. Chappell; and was commenced, by original attachment, on the 3d April, 1857. The cause of action in the case of Chappell v. Cooh & Buf-fington was the defendants’ breach of a contract, by which they sold to said Chappell an interest of three-sixteenths in a steamboat called the Olara, and a similar interest in another boat, called the Champion, which was to be built partly out of the materials of the Clara; and judgment was rendered against the defendants, on the verdict of a jury, on the 15th December, 1856. The defense set up in this action was, that the contract on which the former action was founded was made between Chappell and Cook alone, and that Buffington had no interest whatever in it. On the trial, as appears from the bill of exceptions, the defendant moved the court to suppress the deposition of one Graham, which had been taken by the plaintiff; and showed to the court, in support of his motion, that he had made the statutory affidavit requiring the personal attendance of the witness. The court refused to suppress the deposition, and the defendant excepted to the refusal; “ but said deposition was not offered in evidence on the trial.” The plaintiff offered in evidence the original unrecorded papers in the case of Chappell v. Cooh <& Buffington, the judgment therein rendered, the execution, and the several endorsements thereon; to all which the defendant objected, and reserved exceptions to the overruling of his several objections. “Here the plaintiff rested his case, and the defendant offered no evidence, but demurred to the plaintiff’s evidence; and issue being joined on the demurrer, the court gave judgment thereon for the plaintiff.” The several rulings of the court to which exceptions were reserved, and the judgment on the demurrer, are now assigned as error. Geo. N. Stewaet, for appellant. E. S. Blount, contra. [MAJORITY — STONE, J.] STONE, J. Tbe record informs us that tbe deposition of tbe witness Graham was not used in evidence on tbe trial. Tbis being tbe case, it is clear tbe court committed no error, available to appellant, in refusing to suppress it. It does not appear tbat any final record bad been made in tbe case of Chappel v. Cook & Buffington. There was no error in receiving in evidence wbat was proved to be tbe original papers in tbat cause. — Sbep. Dig. 669, § 90. A motion was made to exclude from tbe jury tbe endorsements on tbe execution. Tbe motion was to exclude tbe whole. A part of tbe endorsement was tbe sheriff’s return of ‘ satisfied.’ Tbat was clearly legal evidence ; and under tbe rule, if a portion of tbe testimony was illegal, tbe court was not bound to separate tbe legal from tbe illegal evidence, but might properly overrule tbe whole motion. — Sbep. Dig. 596, § 169. Drawing all inferences from tbe evidence which a jury might or could have drawn, tbe court could do nothing less than render judgment for tbe plaintiff. — Sbep. Dig. 589, §69. Judgment affirmed.