Kincaide v. Cavanagh

Hammond, J. 1. As to the use made of the declaration and account annexed in the examination of the defendant’s wife. It may be said in the first place that it does not appear what evidence the witness gave, and hence it is not shown that it was prejudicial to the defendant. But, however that may be, this [36] paper was not handed to the witness simply for the purpose of refreshing her recollection. There were one hundred and seventy-five items in the declaration. Counsel for the plaintiff might have read them one by one and asked a question as to each, or he might have read at a time a dozen, more or less, and asked the witness what she could say about them or any of them. Instead of that he was allowed to place the whole account before her, and, instead of framing a question as to each item, to ask her generally to answer as to each item without further question. This method of questioning a witness in such a case is not unusual, and it was within the discretion of the judge to permit it. 2. As to the production of the statements. It is not contended by the defendant that they were not admissible, but he says that, upon his failure to produce them, the only thing the judge could do was to receive secondary evidence. We are of opinion however that, the defendant having taken the stand with the statements in court under his control, the judge at his discretion could either take secondary evidence or order the production of the papers. See Commonwealth v. Lannan, 13 Allen, 563. There was no need of a subpoena duces tecum when both witness and documents were in the presence of the court. 3. The evidence as to whether the agreement between the plaintiff, Tirrell and the defendant ever was made was conflicting, and the finding that it was not made is warranted by the evidence. There was evidence also to support the general finding for the plaintiff. Exceptions overruled.