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.
Mr. Ingersoll. That is not the point. Of course that will stand for what it is worth. I was arguing this point: Can the jury hatch and putty and plaster the secondary evidence with a presumption born of the failure to produce the books and papers?
The Court. What I mean is just this: If you should fail to produce the primary evidence, and then the secondary evidence of the contents is not contradicted——
Mr. Ingersoll. [Interposing.] It may not be contradicted, because it happens to be inherently improbable.