Now, I find another case in the first volume of Curtis's Circuit Court Reports, where it is said, on page 402, that—By the common law a notice to produce a paper—The Court. [Interposing.] Before we part from what you were saying, I wish to say that I do not think that the other side gave you notice to produce the checks; that is my memory.
Mr. Ingersoll. Yes. Let me state my memory to the Court: I do not remember exactly every one of these four thousand pages of testimony; there are three or four that I may be a little dim about; but I do remember that a notice was given to us to produce everything in the universe, nearly, and that the Court held that the scope was a little too broad. I have forgotten the page, but I will tell you where it comes in: It was where Mr. Rerdell swore about the stub-book. I find the notice, may it please your Honor, on page 2255, and it was dated the 13th of February. This is the notice, and it gave the same notice to all the defendants:
You are hereby notified to produce forthwith in court, in the above entitled cause, all letters and communications, including all telegrams, of every kind and description, purporting to come from any one of said defendants and addressed to you or delivered to you, and all memoranda in which reference is made to any contract or contracts of any one of said defendants with the United States or with the Postmaster-General for carrying the mail under the letting of 1878 on any route in the United States, or in any way referring to any contract or contracts for so carrying the mail, in which J. W. Bosler or any one of said defendants had any interest, or in any way referring to any act, contract, or proceeding thereunder, or to any payment, draft, warrant, check, or bill, or note, or to any possible loss or profit in connection with such contract or contracts, or to the management or execution thereof, or referring to any possible gain or profit to be derived by any of said defendants from contracts for carrying the mail of the United States, or to any payments under such contract, or to the distribution of the proceeds made or to be made of said payment, or to the management of any enterprise or enterprises in connection with the transportation of the mail, or to gains, profits, or losses accruing or likely to accrue from such enterprises, or to the financial means for carrying on the same; and also to produce any and all books containing any entry or entries in regard to any of the subjects, matters, checks, drafts, or payments relating or having reference to the subjects, &c., hereinbefore referred to; and also any letter-book or letter-books containing letter-press copies of letters referring to the said subject or subjects.
I believe just about that time, or a little after, another notice was given.
Mr. Merrick. If the counsel will allow me, my impression is that that notice was deemed by the Court to be too broad.
The Court. It was.
Mr. Ingersoll. Then another notice was given that specified all these things.
Curtis says in this case that—By the common law, a notice to produce a paper, merely enables the party to give parol evidence of its contents, if it be not produced. Its non-production has no other legal consequence.
I find too, that in the Maryland case they make a reference to Cooper vs. Gibson, 3 Camp., 303. I also have another case, to which I will call the attention of the Court, United States vs. Chaffee, 18 Wallace, 516. I have not the book here, but I can state what it is. My recollection of the case is this: That an action was brought against some distillers; that by law distillers have to keep certain books in which certain entries by law have to be made. Notice was served upon the defendants to produce those books. They refused so to do; and the question was whether any presumption arose against the defendants on account of that refusal.
The Court. I agree with you entirely that far in your law, that the mere fact of the failure to produce books or papers has no effect at all against the party declining to produce them. But it is a different question altogether, after secondary evidence has been given, in consequence of such refusal, to supply the place of the primary evidence. If the books and papers have an existence, and the party who has received the notice has refused to produce them, and the other party has given secondary evidence of the contents of such books and papers, that secondary evidence will have to stand, under those circumstances, as the proof in the case.