The objections to the second plea are more substantial. This in effect is a plea. in abatement denying the jurisdiction of the court. and should have been pleaded first in order. The defendant, having ad. mitted jurisdiction or waived it by a plea in bar to the action, cannot subsequently plead in abatement. This would, if allowed, violate the established order of pleading, and produce confusion. 1 Chit. PI. 425; Gould, PI. 226; Evans v. Davenport, 4 McLean, 574; Smith v. Kernochen, 7 How. 216; Sheppard v. Graves, 14 How. 509; Spencer v. Lapsley, 20 How. 267; Gause v. City of Clarksville, 1 Fed. Rep. 359. The opinion of the court in Sheppard v. Graves gives a striking illustration of the mischiefs that would be caused by a departure from the orderly method of pleading. In the case at bar the plea is unsupported by a special affidavit of the facts on which it is drawn. Such affidavit is necessary to enable the court to judge of the probable truth of the plea, and to ascertain whether it is made in good faith, or only for the purpose of delay. 1 Chit. PI. 452; 2 Chit. PI. 459. The question of jurisdiction must be first tried and disposed of before considerIng the other pleas. The third plea is inadmissible. A judgment rendered by a court having jurisdiction of the cause of action, and of the parties to it, cannot be impeached by evidence of facts or circumstances relating to the transactions on which such judgment is founded. It is a maxim in law that there can be no averment in pleading against the validityof a judgment, and therefore no matter of defense can be pleaded which existed prior to its recovery. 1 Chit. PI. 354, 481. The effect of this plea would be to open the judgment, and retry the original cause of action on its merits, and thus lead to indefinite litigation, which it is the policy of the law to prevent. Such pleading wrong, and incapable of amendment. But this cause not being at issue, and it being ,!ithin the discretion of the .court to allow amendments in pleading for the ance of justice, the defendant may have leave to amend the first two pleas, both as to order and averment, on payment of the costs of this motion. See Evans v. Davenport, supra, and Eberly v. Moore, 24 How. 157.
POSTON and others.
PAR'n OR COUNSEL WRITING ANSWERS. While it is, perhaps, not a ground to entirely suppress a deposition that the party or counsel taking it has written the answers for adoption by the witness it so discredits the evidence that it is not entitled to much weight; and this is so, although the deposition is not used, but another is taken without that objection.
UNITED STATES V. ROGERS.
The questions and answers to a deposition were written out by the party to the suit, who was also a witness to the same facts, and the deponent adopted the answers as his own; but subsequently he was re-examined in the usual way, testifying substantially to the same, facts. On cross-examination the first deposition was exhibited, and the method of preparing it proved. So much of the opinion as relates to that point is given; the other portions not being reported because determining only a matter of fact. Randolph a Heath, for plaintiff. Poston a Poston and Metcalf <t Walker, for defendants.
HAMMOND, J. · · · If the deposition so prepared were the one offered in evidence, I should find no difficulty in almost entirely excluding it. Perhaps it may not be a ground for the suppression of the deposition or exclusion of the evidence, but certainly it is so much of a discrediting circumstance that the testimony is entitled to but little weight. In Re Eldridge, 82 N. Y. 161, it was held a contempt of court to so prepare a deposition, and the court clearly sets forth the worthlessness of such proof. I held, in another case, that it was a contempt to prompt the witness, and advise her not to answer. U. S. v. Anon., 21 Fed. Rep. 771. But the deposition here offered was not that written out by the party, and the witness seems, in speaking to the notary, to be less under the influence of the plaintiff, than when he speaks directly through him. · · ·
(District Gowrt, 8. D. New York.
August 5, 188f}, )
OFFICIAL BOND-VALIDITY-COMMON-LAW OBLIGATION.
In a bond with sureties, given by an officer to the government. it is sufficient to make the bond valid as a common-law obligation that it is voluntarily given. and that the office, and the duties assigned to the officer, and covered by the bond, are duly authorized by law.
2. SAME-SIGNAL-SERVICE CORPS-PROPERTY OFFICER-VOLUNTARY BOND.
The defendant executed a bond as surety for H. W. H., a lieutenant in the army, given by the lattjtt on being assigned to duty as property and disbursing officer of the signal service. United States army. Held, that this assignment must be deemed made on the application of H. W. fl.. and not o·oli· gatory on him as lieutenant merely; that the office of disbursing and propEt"ty officer of the signal service has been authorized by congress; and that the bond was not compulsory, but given voluntarily, to obtain the assig-nment to that duty, and was properly required, though not specially authorized by law, and was binding.
At Law. Stephen A. Walker, U. S. Atty., and G. E. P. Howard, Asst. U.S.' Atty., for the United States.