Stetson v. Lyons , 34 Ala. 140 ( 1859 )

STONE, J.

[1.] No specific objection to the certificate of the commissioner, who certified the deposition of the witness Caro, has been pointed out to us. We think the certificate sufficient, and hold that the circuit court rightly overruled the motion to suppress. — King v. King, 28 Ala. 315; Thrasher v. Ingram, 32 Ala. 645.

[2.] The rule invoked by appellant, in its largest application, goes only to this extent: When a paper is produced under notice, and is examined by the party who called for its production, this examination constitutes the paper evidence for the party producing it, if he elect to make such use of it.

. The notice in this case does not specify or describe any letter or letters. It called, in general terms, for the production of “the books and papers in plaintiff’s possession, containing all of the business transactions had hitherto between plaintiff and defendant in relation to the subject-matter of this suit, and also of subsequent dealings between them.” The bill of exceptions does not inform us that the letters were inspected. True, speaking of the books and papers, it says, “all which were subject to the inspection and use of the defendant, and witnesses were examined as to some of said books as evidence.” The meaning of this language, as we understand it, is, not that all the books and papers were examined, but that defendant w7as offered the opportunity of making an examination, if she had chosen to embrace it. Some of the books she must have inspected, because witnesses were examined in relation to them. It is not affirmed that she examined any of the letters. The court did not err in rejecting the letters offered in evidence. — 1 Greenleaf’s. Ev. § 563; Phil. Ev. (edition by Van Cott,) part 2d of notes, 426-27, 409.

In thus laying down the rule, we do not wish to be understood as deciding or affirming, that all papers which a party may produce, under a general notice calling for all papers upon a particular subject, are made evidence, simply by an inspection of them, and this, irrespective of their genuineness. Under such a rule, a spurious paper might be, by a corrupt party, substituted for the genuine one called for; and thus the practice of calling for the production of papers, would be rendered extremely hazardous. Moreover, it did not appear to the circuit court, nor are we informed, that the papers offered in evidence were genuine, or were called for by the notice. We simply state this proposition, without intending, at this time, to decide it.

Judgment of the circuit court affirmed.