Finney v. St. Charles College

BIRCH, J. AVe think, under all the circumstances of this case, that it was wrell enough tried in the court below. It is perceived by reference to the bill of exceptions that the deposition of Greene was taken in a. [190] similar suit between tbe same parties in 1846, and that the defendant was present and cross-examined the witness. It is too late to question the reasonableness of the policy of permitting such a deposition to be read in a subsequent suit between the same parties, and the analogous authorities are scarcely less explicit respecting the admissibility of copies, properly evidenced, after proof of the loss of the original. In this case it was proven, firstly, that the magistrate who took the deposition in the former suit made out and sent the plaintiffs’ counsel a copy — as is frequently requested for the purpose of informing them of the nature of the testimony. It was next proven that the record of that suit, including the original deposition, was lost or mislaid, and the witness, who is an intelligent lawyer, and of counsel for the plaintiffs in both suits, swears that, having read both the original and the copy, he believes them to be alike. The case, therefore, from its nature, does not seem to disclose the existence of other and better evidence, and we perceive no error in permitting the copy thus proven to be read to the jury, as proving the contents of the original.(a) It is deemed unnecessary to review the action of the court below in refusing to give the instructions asked for by the defendant — the one subsequently given of its motion having covered the entire case in such manner as to place its merits substantially, fully and fairly before the jury. Let the judgment, therefore, which was rendered upon their verdict, be affirmed. Footnotes [a] (a) Tindall v. Johnson, 4 Mo. R. 113; Gould v. Trowbridge, 32 Mo. R. 291; Farrell v. Brennan, 32 Mo. R. 328; Carr v. Carr, 36 Mo. R. 408: Samuel v. Withers, 16 Mo. R. 532; Kritzer v. Smith, 21 Mo. R. 296; Charleson v. Hunt, 27 Mo. R. 34; Perry v. Moon, 24 Mo. R. 285; Cabanne v. Walker, 31 Mo. R, 274.