Lobdell v. Marshall , 58 N.H. 342 ( 1878 )

"In a case so reserved upon a statement of facts agreed to by the parties, the plaintiff, and in other cases reserved, and upon a bill of exceptions allowed, the party excepting or moving, shall furnish to the court copies of the case and papers referred to, sufficient for the justices sitting in the case." Gen. St., c. 189, s. 12. Documentary evidence, made part of a bill of exceptions or reserved case by reference, is necessarily regarded as waived by the party excepting or moving, when it is not sent to the court with the printed case, and the requisite steps for remedying the defect are not taken. As we have not received the deposition (which is by reference made part of the reserved case) or a copy of it, and as no effort has been made by the defendant to give us information of its contents, we assume that it does not throw upon the questions raised a light favorable to him.

Upon the facts stated in the reserved case, it cannot be held, as matter of law, that the deposition was inadmissible. The mere fact that a witness does not produce papers may not be a sufficient reason for rejecting all his testimony. Before all his testimony is rejected for that cause, it is necessary to know what his testimony is, what connection it has with the papers, and how their non-production renders his testimony incompetent. The failure of a party to produce a paper is often a ground for the admission of secondary evidence of its contents? and may be evidence itself to be considered by the jury. Sometimes an order is made for the production of papers. A compulsory writ of summons for their production may be employed. If the whole or a part of a deposition may be rejected absolutely, or until papers are annexed or produced at the trial, it does not appear that any of the papers mentioned in this case were such as the plaintiff should be compelled to produce, or that, if produced, they would be admissible in evidence, or that, if admissible, they were of any practical importance, or that their non-production was, in law or in fact, a sufficient reason for rejecting the deposition, or that the question of rejection was one of law and not of discretion.

The case does not show for what purpose the rejected evidence (of transactions subsequent to the date of the writ) was offered by the defendant. The only purpose for which it is claimed, in argument, to be competent, is to show an extinguishment of the plaintiff's right of action; and we infer that wag the only purpose for which it was offered. For that purpose, it wag not admissible on the pleadings on which the case was tried. Matter of defence arising after the commencement of an action cannot be proved in bar of the action on the general issue, but must be pleaded specially. Bailey v. March, 2 N.H. 522, 524; P. Bank v. Brackett,4 N.H. 557; Parks v. Ingram, 22 N.H. 283, 296; Williams v. Tappan,23 N.H. 385, 394, 395; Dana v. Sessions, 46 N.H. 509; 1 Ch. Pl. 657.

Judgment on the verdict.

STANLEY, J., did not sit.