Learned v. Hall

C. Allen, J. To meet the argument which might legitimately have been derived from the omission to read the deposition in evidence, the plaintiff did not offer to show that it was out of his power to introduce it, as, for example, that it had been lost, stolen, or destroyed. But the testimony which was offered would still have left the fact to be correctly inferred, it would indeed have furnished direct proof of the fact, that the plaintiff did not use the deposition because he thought it would not help his case. It was a matter of no legal materiality how it happened that the plaintiff became disappointed in the testimony which he expected to obtain from the witness. If the deposition had been used by the adverse party, it would of course have been open to [419] the plaintiff to contradict the witness, by proving inconsistent statements made by him at other times. But the deposition was not used. The evidence of the witness was not in the case; and it was of no legal consequence whether he was a truthful person or not. It might well be that the plaintiff was disappointed at failing to obtain the evidence which he expected, and that he had been misled into taking the deposition; but the fact remained, that he did not produce the evidence of this particular witness in his favor, because the witness had testified in such a way as not to help him. This evidence being wanting, an inquiry into the truthfulness of the witness would be too remote from the question at issue. If the plaintiff could be allowed to introduce evidence of his untruthfulness, the defendant might introduce evidence in reply; and thus an issue would be raised and tried to the jury, as to the truthfulness or untruthfulness of a person in the country, whose testimony neither party cared to use. If the plaintiff could establish the fact that the person had testified falsely in a deposition which was not used, it would signify nothing. We do not clearly perceive that the argument of the defendant’s counsel to the jury was allowed to be pressed too far ; but, if it was, the way to correct the effect of an argument which exceeds due limits is to object to it at the time, to answer it by a counter argument, or to ask suitable instructions to the jury. Exceptions overruled.