So. Life In. & Tr. Co. et al. vs. Cole.-Opinion of Court. tiff was not entitled to any decree, and the decree was reversed and the bill dismissed. See also Rawlins vs. Powel, (1 P. Wms., 300,) and Consequa vs. Fanning, (3 Johns. Ch. R. 594-'5) to the same point. In Beekman vs. Frost, (18 Johns. R., 558,) which was an appeal from the Court of Chancery to the Court of Errors, Spencer Ch. J. reviews a number of cases on this point, and deduces from them the following principle: That in the appellate Court, no party shall be allowed to surprise or mislead his adversary; that if a party in the court below shall purposely suffer a decree or judgment to pass against him, by default, without contesting it there, he shall not be heard in the appellate court, or if counsel shall for the first time raise a point here, which might have been obviated. had it been made in the court below, he ought not to be permitted to do so. So in Watts vs. Waddle, (6 Peters' R. 389,) the Supreme Court of the United States allowed a plaintiff, who appealed from a decree dismissing his bill, to assume in the appellate court a new ground of relief, not specifically prayed for in the bill, and not asked for in the court below, saying: "There is no rule of "court or principle of law which prevents the complain"ants from assuming a ground in this court which was 'not suggested in the court below." And, although the Supreme Court affirmed the decree appealed from, yet they opened it so far as to let in the new relief, and remitted the case that the relief might be given. See also the cases of Kerr vs. Watts, 5 Peters' Cond. R., 179, and Kerr vs. Moon, 5 Peters' Cond. R., 686. There seems to be no distinction taken in the Chancery practice of the English Courts, or in that of New York, between re-hearings and appeals, but both are treated as the same proceeding. 66 From a careful review of the authorities, we are satisfied that an appeal in equity is substantially a re-hearing 66 So. Life In. & Tr. Co. et al. vs. Cole.--Opinion of Court. of the cause, and that the appeal opens the whole case to the respondent in the appellate court; and although the appellant may show that the view taken by the court below was erroneous, yet on the other hand, the respondent may argue and show, if he can, that upon the whole case, the same result must be attained here. The authority of this court, by Sec. 5th of the Act of Feb. 10th, 1832, (Thomp. Dig. 449,) is, "to reverse or affirm the "judgment, sentence or decree of the court below, to 66 award a new trial in the court below, or to give such "judgment, sentence or decree as the court below ought to have given." It is very clear that the power to give the decree which the court below ought to have pronounced, could never be exercised if this court did not possess the right to look into the whole case as it is presented in the record, and to consider it as the court below should have considered it. We are, therefore, satisfied that we have a right to look into the whole cause, as it is presented in the record, to re-examine questions decided against the respondent, and also such as passed sub silentio in the court below, or to consider points made here for the first time, provided, they are raised by the pleadings and proofs, but adopting, however, for the protection of the parties, the guards laid down by Ch. J. Spencer, in the case before cited, that neither party will be permitted to surprise or mislead his adversary, or to make objections which might have been obviated had they been presented for the consideration of the court below. We now proceed to the consideration of the question of the competency of Mr. Robert Lyon as a witness on behalf of the appellants. The respondent in the court below, moved that the deposition be suppressed, upon the allegation that he was incompetent, by reason of his inter So. Life In. & Tr. Co. et al. vs. Cole.-Opinion of Court. est; which motion was overruled, and the deposition was read at the hearing. The objection is now renewed in this court, and the counsel for respondent contend that Mr. Lyon, being, according to the proof, at the time of his examination, a share-holder in the corporation, he was so interested as to be incompetent to testify on its behalf; that the assignment to Thomas R. McClintock, previous to his examination, did not make him competent, because such assignment was made pending this suit, which leaves the corporation liable for costs as a party to the record. It is also urged that, notwithstanding the assignment, there is still an interest in the company, in the event of this suit, beyond the question of costs, which incapacitates the witness. It is argued that the Company, by the assignment to McClintock, impliedly warrant their title to and the validity of the bond and mortgage, which is the subject matter of the suit and the assignment; that the company also warrants that it has no knowledge of any facts, which, if the instruments were originally valid, would prove them worthless, and therefore the company, and Mr. Lyon, as one of its members, have an interest in the recovery here, to prevent a recovery over against the company on the failure of the present suit. That the members or share-holders of corporations created for private emolument, are considered as having a direct, certain and vested interest, and therefore not admissible as witness for such corporation, is well settled, upon authority, 1 Greenlf, Ev. 333, and authorities cited in the margin. The company being a party to this suit upon the record, is undoubtedly liable for costs, and liability for costs, it is also well settled, is a sufficient interest to render a witness incompetent. The court below should have granted the respondent's motion, and suppressed the deposition of Mr. Lyon, and in the examination of the case here, So. Life In. & Tr. Co. et al. vs. Cole.-Opinion of Court. it will be excluded from our consideration. As the incompetency of the witness is clear, upon the point considered, we do not express any opinion on the other. The bill is filed for the foreclosure of a mortgage, which it is alleged, was executed to the company to secure the payment of a bond for the penal sum of thirteen thousand dollars, conditioned to pay the sum of six thousand, five hundred dollars on or before the expiration of the term of eight years from its date, with legal interest from the 1st day of January, 1841, preceding the date of the bond. The allegation is, that the respondent, on the 20th December, 1841, being indebted to the Southern Life Insurance & Trust Company, did sign, seal and deliver the bond and mortgage described. The answer denies positively any indebtedness on the part of respondent to the Southern Life Insurance & Trust Company, and admitting the signing and sealing of the bond and mortgage exhibited, denies positively that the said instruments were ever delivered to the Company by the said respondent, or by his authority or direction, and proceeds to give the history of the creation of these instruments, and the purposes for which they were executed. It is in substance this: That being desirous to raise a sum of money to meet some urgent necessity, he concluded to become a property stockholder in the said company, in order to avail himself of the privilege granted to shareholders therein of borrowing two-thirds or three-fifths of the amount of stock; and accordingly commissioned one N. M. Martin to engage for him as many shares of stock as his property, on appraisement, would cover; that he was informed by Martin of the engagement to purchase shares of one Thomas J. Linton or one William L. Tooke, he does not recollect which; that he caused an appraisement of his property to be made, executed the bond and mortgage in question by signing and sealing the So. Life In. & Tr. Co. et al. vs. Cole.-Opinion of Court. same, and deposited them with the cashier or officers of the company, to be delivered to and to become the property of the company upon the transfer of the shares of stock to him which his agent, Martin, had contracted for. It is further alleged that no shares of stock where transferred to him by Tooke or Linton, until December, 1842, when, after the company had become embarrassed, &c., and its stock had become worthless and its notes greatly depreciated in value, and after he had expressly declined to receive any transfer for the reasons before stated, the cashier, Mr. Lyon, procured an assignment to be made on the books of the company, by William L. Tooke, to the respondent, of sixty-five shares of stock, without the knowledge or assent of the respondent, and which assignment and transfer he never accepted. The defence set up has been considered in argument as resolved into two points: First, that the bond and mortgages are invalid for want of delivery; and secondly, that they are invalid for want of consideration. It is not pretended that there was, at any time, any loan of money by the Southern Life Insurance & Trust Company to the respondent, nor indeed any transaction whatever, except that which related to the effort of respondent to acquire stock in the company. It appears that the appraisement of the property, which he proposed to mortgage as security for the stock amounted to thirteen thousand dollars, and which, according to the rules which the company had established, would secure sixty-five shares of the nominal value of one hundred dollars per share, and making an aggregate of six thousand, five hundred dollars. The fact from whom the stock was to be procured is involved in some obscurity. The respondent, in his answer, says that he employed Martin to purchase the shares for him, and that Martin informed him he had done so from |