Mr. Ingersoll. Suppose, after the other side had proved the contents, there was an offer of the actual original papers. I can find plenty of authority that they must be received.
The Court. I have never seen such authority, but I have seen a great many to the contrary.
Mr. Ingersoll. I have never seen an authority to the contrary that was very well reasoned. But, then, I will not argue about that, for that is not a point in this case.
The Court. If you have the papers, and have received notice to produce them, you are bound to produce them. If you do not produce them secondary evidence is admissible to prove their contents. But after the secondary evidence has been received, the Court will not allow you then, after having first failed to produce the papers upon notice, to resort to the primary evidence which you ought to have produced upon the notice, for the purpose of contradicting the secondary evidence that was given.
Mr. Ingersoll. Now, let me give the Court a case in point: In this very case that we are now trying, Mr. Rerdell in his statement to MacVeagh said there was a check for seven thousand dollars; that the money was drawn upon that check; that he and Dorsey went together to the Post-Office Department and that Dorsey went into Brady's room; that that money was drawn by Dorsey. That was his statement to MacVeagh and James.
The Court. It was not his statement here.
Mr. Ingersoll. Yes, that was his statement here, as I will show hereafter. But let me state my point. He was coming upon the stand. The check, instead of being for seven thousand dollars, was for seven thousand five hundred dollars; instead of being drawn to the order of Dorsey or to bearer, it was drawn to the order of Rerdell himself; instead of being drawn at the bank by Dorsey, it was drawn by Rerdell in person and had his indorsement upon the back of it. We were asked to produce that. I preferred not to do it until I heard the testimony of Mr. Rerdell. Why? Because I wanted to put that little piece of dynamite under his testimony and see where the fragments went, and I did. That is my answer to that.
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.