Milliken v. Barr

Burnside, J. This was an action of assumpsit on two promissory notes. The plaintiff in error, who was defendant in the District Court, alleged they were forged and counterfeit. On this ground much evidence was given on both sides. The plaintiff below, as rebutting the defendant’s evidence, offered to prove, by witnesses, that they had seen a certain note of the defendant, and in his handwriting, in possession of the plaintiff, with endorsements and credits on the back, and the amount and character of the credits so endorsed, and this for the purpose of showing [24] that the note sued by the plaintiff was different from that marked N, dated the 19th May, 1842. To this evidence the defendant objected, the objection was overruled by the court, and this forms the material question in the case, and is the error assigned. The law and the practice on this subject is plain and well settled. Where the instrument or writing is in the hands or power of the adverse party, the practice is to give him or his attorney a regular notice to produce it; not that on proof of such notice he is compellable to furnish evidence against himself, but to lay a foundation for the introduction of secondary evidence of the contents of the document or writing; 1 Greenl. Ev. sect. 560. This rule is of immense importance to prevent surprise; indeed it has been held that proof that the adverse party, or his attorney, has the instrument in court, does not make notice to produce it unnecessary, for the object of the notice is not only to produce “the paper, but to give the party an opportunity to provide 'the proper testimony to support or impeach it; 2 Tidd’s Prac. 803; 1 Stark. Rep. 225; Note 2 to 1 Greenl. Ev. sect. 560. The counsel for the defendant in error complains that his opponent did not state his objection to the evidence. The counsel had a right to require the objection to be stated, and the party would have been held to that ground of objection. The correct practice is to state for what purpose the evidence is offered; where the opposite counsel has omitted to, make the inquiry, the party offering the evidence has the advantage of showing it was pertinent evidence for any purpose. So where there is an objection to evidence, it is a duty the court owe to themselves to have the objection stated; Gordon v. Moore, 5 Binn. 138. Judgment reversed, and a venire de novo awarded.