Richardson v. Provost , 35 S.C.L. 57 ( 1849 )

Curia, per Evans, J.

The questions whether Corbett had authority to bind the defendant, and whether W. P. Provost was authorized to sign C. J. Provost’s name to the note given for the negro, were mere questions of fact. The evidence on the latter question was certainly not as satisfactory as it might have been, but it cannot be said there was no evidence on the point. This Court rarely undertakes to control a jury on a question of fact merely, and then only in cases where the verdict is without evidence, or palpably against it. The rules by which the Court is governed in such cases have been so often stated that it is deemed unnecessary to repeat them here, although there is some difference of opinion in the Court.

The first ground in the notice of appeal requires a more particular notice. There is no doubt about the legal principle that where an agent does an act under a written power of attorney, the writing must be produced, that the Court may see that the act done was authorized. That is the best evidence, and secondary evidence of its contents is inadmissible when the better evidence can be produced. But every exception to the admissibility of evidence must be taken at the proper time. The evidence of Corbett was taken by the counsel under an agreement that it should be read at the trial. There was no objection made then. If there had been, it might have been supplied. All such objections should be made, if known, at the time the evidence is offered. It would be attended with very mischievous consequences, if in cases like this a party might withhold his objection until the trial, and then surprise the opposite party by an objection, which could have been removed if he had known that it would be made. Evidence thus taken is like evidence taken in Court, where it is every day’s practice to receive secondary evidence, if unobjected to. If objections to such evidence are not made at the proper time, they should be considered as waived.

The motion is dismissed.

O’Neall, Wardlaw, Frost and Withers, JJ. concurred.