Cooper v. Maddan , 6 Ala. 431 ( 1844 )

ORMOND, J.

We are unable to perceive any objection to the course pursued by the judge of the county court, in requiring but one bond to be given, as the condition on which the certiorari and supersedeas were to issue. It could subserve no valuable purpose to require sixteen bonds to be executed, when the same defence existed to all the judgments, and the rights of the plaintiffs could be fully secured by one. The certiorari should not, therefore, have been dismissed for this cause, and if the bond was defective, the defect should have been pointed out, that it might have been re'medied by the execution of a new bond.

In Powell v. Gray, [2 Ala. 77,] we held that a writ of error would not lie upon the refusal of the court to consolidate several cases depending between the same parties, but the question is different where the court has directed a consolidation. In such a case, if injury has resulted to the party objecting to it, it could doubtless bo redressed on error. But it is difficult to conceive that any injurious consequences could flow' from such an order in this case, nor indeed, how it could be otherwise than beneficial to both parties. It was the duty of the party objecting to the consolidation, to show that it would in some way prejudice him, and in the absence of any such suggestion, we must presume that no such obstacle exists to the exercise of the power.

Where secondary evidence is proposed to be offered of the contents of a written instrument, it must first be shown that it is not in the power of the party to produce it. as that it is lost or mislaid, or in the possession of the opposite party. The evidence of the justice of the peace, that after diligent search, he could not find the notes, was not sufficient, because it does not appear they were ever in his custody, and the narration of what his predecessors in office told him, was mere hearsay, and therefore, incompetent testimony. Bat proof that the defendant admitted that the notes were Jost, was competent evidence of the fact, and should have been received. For this error, the judgment must be reversed, and the cause remanded.