Boykin v. Collins , 20 Ala. 230 ( 1852 )

PHELAN, J.

We hold it to be entirely clear, that the po:tion of Mr. Helen’s deposition which says that the merchandize bad been shipped to Mrs. Collins by her instructions, was testimony a'together material to the issue between the parties to this action. But it is shown here by the deposition itself, that these instructions were in writing. A well .settled rule of the law of evidence declares, that where there is any writing containing evidence material to the issue in the possession of a party, such party cannot substitute oral testimony in place of the written, unless he will account satisfactorily for the absence of the written evidence. 1 Green. Ev. § 88.

This was an attempt to substitute secondary evidence for primary, without showing that the primary or best evidence could not be had. Secondary evidence, without such a showing, is not admissible, and a motion to suppress it in a deposition may be made at any time, either at the trial or before. The principle is not varied in the case of a deposition, from what it would be if the same testimony were given by a witness from the stand. In either case, secondary evidence will be rejected, when it is shown that the party offering it had better evidence which he does not produce, and shows no sufficient reason why he does not produce it.

The plaintiffs, by proving that the defendant had had possession of the deposition for twenty-four hours before the trial, and by the charges that the court was requested to give in connection with that proof, seem to have thought that the legal obligation resting upon them, to lay a proper ground for the introduction of secondary evidence, was obviated by the neglect of the defendant to give them notice to produce the written order, after having had twenty-four hours’ possession of the deposition. That would be giving a qualification to the rule requiring the production of the best evidence, that would be both novel and dangerous. The rule now is, if a, party allows secondary evidence to go to the jury without objection, he will not be allowed to object in the argument; but by this new rule, if a party knows it is the intention of the other party to offer secondary evidence, and he does not give him notice to produce the best, he will be concluded from objecting to the secondary ev dence when it is offered. This would not be a wholesome rule, and in truth is not the rule. All the charges that were asked of the court, which were predicated upon such an idea, were properly refused.

There is one of the charges that the court refused, which requires, perhaps, a separate notice. The request is in these words;

“ That in order to require the production of said paper, letter, or order in writing, the defendant should have objected to the witness’ speaking in relation thereto at the time of the deposition being taken, or by suitable interrogatories, and that having then neglected so to do, she cannot now object to the deposition of the witness on that account.”

If a party is present at the taking of a deposition, and allows secondary evidence to be received without objection, he would not be allowed, as a general rule, to make the objection afterwards ; but in this case the deposition was taken by interrogataries, and there is no proof that the defendant was present by herself or counsel. But, it is said, the objection-should have been made by “ suitable cross-interrogatories.” The' answer is, that there was nothing in the nature of the suit, or the interrogatories filed by the plaintiff, that would naturally suggest to the mind of the defendant, that plaintiff was going to establish his demand by proof of written instructions from defendant to forward goods. There was no question by plaintiffs, so framed as to elicit from the witness proof that the goods were furnished agreeably to instructions from the defendant of any kind, by which defendant could be admonished to call for the production of a writing in a cross-interrogatory. A motion to suppress testimony which is wholly incompetent may be made at the trial, but testimony which is good in itself, but has been irregularly taken, ought not to be suppressed, unless the motion is made before the parties proceed to trial. Jordan v. Jordan, 17 Ala. Rep. 466, and authorities there cited.

There is no error in the record, and the judgment is affirmed.