CANAL ZONE V. ANDERSON AND ADDISON.

jections were made to this evidence, but it shows furthermore that the plaintiff himself pursued the subject and seemed to regard it as material.
There does not appear to have been, as the mortgage evidently contemplated, an intelligent accounting made by the plaintiff. The evidence of payments is most complicated. Both plaintiff and defendant, as well as their witnesses, give different accounts of different sums and different amounts with yielding values.
In this conflict of testimony, not confined to the parties themselves, but also to the witnesses, it was difficult for the court to ascertain the true facts. The record shows that the court in giving judgment took into consideration the evidence showing what the houses were capable of producing each month, not as an absolute guide, but simply as throwing light on the subject. This light should have been thrown on by an intelligent accounting by the plaintiff himself. The questions in the main, however, before the court were questions of fact and not of law, and the conclusion arrived at seems to be fully sustained by the testimony. It has been a rule of this court that when the testimony sustains the finding and only a question of fact is involved, not to disturb the judgment.
The judgment of the court below is affirmed. Let this be
certified.
Affirmed.
CANAL ZONE versus ANDERSON and ADDISON.
No. 108. Argued February 19, 1913. Decided March 27, 1913.
EVIDENCE. ADMISSIBILITY.
Oral testimony as to the evidence of a witness given at a previous hearing can only be admitted in a criminal case, provided it has first been made to affirmatively appear that the witness is dead, or, if living, that the government has used diligence in endeavoring to procure the absent witness; that the witness is beyond the jurisdiction of the court and that the defendant is in some way responsible for his absence.
Appeal from the Circuit Court of the First Judicial Circuit; Hon. H. A. Gudger, Judge.
The facts appear in the opinion.
V. E. Bruno, for appellant. Charles R. Williams, for appellee.

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