Sidebilder
PDF
ePub

who and what and how related to the case the witness is or may be, are many questions relevant which otherwise would not be relevant. The decisions of courts of last resort afford no data, and have no such uniformity or similarity as to afford the grounds of a general rule. What they decide to be relevant or irrelevant is or is not so, for the particular case and within their jurisdiction, and to that extent only. A few cases, showing what has and what has not been deemed relevant, will serve to illustrate this remark. It will generally be found that the circumstances of the parties to the suit at the time of the controversy are relevant. On the trial of an action for work done and materials supplied to certain houses on the orders of a third person, the defendant denying that he is the owner of the houses, or the real principal, evidence is relevant that other persons had received orders from the defendant to do work at the same houses, without showing that the plaintiff knew of those orders at the time he did his work. But if the orders had been to do work upon other houses, it seems they would not have been relevant. Woodman v. Buchanan, L. R. 5 Q. B. 585; Dowling v. Dowling, 10 Ir. L. Rep. 236. The question being whether A loaned money to B, the fact of A's property at the time of the alleged loan is relevant. Dooling v. Docling, supra. The question being to which of two persons the plaintiff gave credit, the facts that he had already before brought suit upon the same demand against one, is relevant, as showing that he did not give credit to the other. Head v. Taylor, Litt. Sel. Cas. 258. On proof that the defendant was at a certain place where he might have committed an alleged trespass, it is relevant to show that he was there from another motive than to commit it. Prindle v. Glover, 4 Conn. 266; Tracy McManus, 58 N. Y. 257. The fact that A usually procured and paid for the board of the workmen in his employ at other boarding houses, is relevant on the question of his indebtedness for the board of those boarding with B. Dwight v. Brown, 9 Conn. 83. The question being whether A caused B to miscarry, by violence, the fact that B had several times before miscarried, without violence, is relevant. Slattery v. People, 76 Ill. 217. Stephen, Dig. (May's ed.) Chap. 1, art. 1, note. For further exposition of this subject see 1 Rice, Civil Evidence, chap. 12.

CHAPTER VIII.

LETTERS.

§ 44. Present Rules Regarding Letters.

45. Importance of Letters.

46. Originals Must be Produced or Accounted for.

47. Letter-press Copies.

48. Foundation for Secondary Evidence of Contents.

49. Views of the Massachusetts Supreme Court.

50. Mailing Letters Raises the Presumption of Receiving.

51. Genuineness Must be Shown.

52. Unanswered Letters.

53. Failure to Answer as Admission.

54. Extract from a Lost Letter.
55. Decoy Letters.

56. Miscellaneous Authorities.

§ 44. Present Rules Regarding Letters.-Letters as "writing." A letter is certainly a "writing," if addressed by one person to another. While we may call it a letter, it is also a writing, whether the characters are made with the pen, by type, or in any other manner. United States v. Gaylord, 17 Fed. Rep. 441; United States v. Britton, 17 Fed. Rep. 732. The word "letter" will include the sent; as, in a notice to produce a letter. 19 Blatchf. 10.

envelope in which it is United States v. Duff,

The postmark on a letter is prima facie evidence that the letter was in the postoffice at the time and place specified. New Haven County Bank v. Mitchell, 15 Conn. 206; Bussard v. Levering, 19 U. S. 6 Wheat. 102, 5 L. ed. 215; Lindenberger v. Beall, 19 U. S. 6 Wheat. 104, 5 L. ed. 216; Riggs v. Hatch, 16 Fed. Rep. 838, 842, 850; Rosenthal v. Walker, 111 U. S. 193, 28 L. ed. 398; Montelius v. Atherton, 6 Colo. 227; Breed v. First Nat. Bank, 6 Colo. 235.

If a letter is sent by post, it is presumed from the known course in that department of the public service that it reached its destination at the regular time, and was received by the person to whom it was addressed. Breed v. First Nat. Bank, supra.

§ 45. Importance of Letters.-Letters frequently disclose facts that are well calculated to unfold and develop the nature of a transaction, and they should be admitted as part of the res gestæ, notwithstanding they contain declarations in a party's favor. Beaver v. Taylor, 68 U. S. 1 Wall. 637, 17 L. ed. 601.

Although a letter contains a statement as to an alleged agreement made after the date when an agreement was made, it is still admissible as part of the res gesto. McCotter v. Hooker, 8 N. Y. 497; Palmer v. First Nat. Bank, 4 N. Y. Week. Dig. 268; Jewell v. Jewell, 42 U. S. 1 How. 219, 232, 11 L. ed. 108, 114; Com. v. McPike, 3 Cush. 181, 1 Am. Rep. 727; Com. v. Hackett, 2 Allen, 136; Tompkins v. Saltmarsh, 14 Serg. & R. 275; Rawson v. Haigh, 2 Bing. 99, 104; Ridley v. Gyde, 9 Bing. 349; Rouch v. Great Western R. Co. 1 Q. B. 51; Thorndike v. Boston, 1 Met. 242, 247; Doe v. Arkwright, 5 Car. & P. 575.

§ 46. Originals Must be Produced or Accounted for.-The mere fact that a party keeps letter-press copies, does not relieve him from the necessity of producing the original, or of laying foundation in the ordinary usual way, for the reception of secondary evidence. Foot v. Bentley, 44 N. Y. 171, 4 Am. Rep. 652; King v. Worthington, 73 Ill. 161; Watkins v. Paine, 57 Ga. 50; Delaney v. Erickson, 10 Neb. 492; Ward v. Beals, 14 Neb. 114. And in Maryland it is held that, to entitle a party to the introduction of secondary evidence, the opposite party must have been served with a notice to produce the original document; and, further, that some proof must be adduced that this notice was received. Marsh v. Hand, 35 Md. 123.

This entire topic is the subject of an extended note appended to the case of the Oregon SS. Co. v. Otis, 14 Abb. N. C. 388, 53 Am. Rep. 221.

§ 47. Letter-press Copies. --A sworn copy of a letter-press copy of a lost letter is competent as evidence of the contents of the letter, without producing the letter-press copy. Goodrich v. Weston, 102 Mass. 362, 3 Am. Rep. 469. This is upon the ground that there are no grades of secondary evidence. Whenever a copy of a record or document is itself made original or primary evidence, the rule is clear and well settled that it must be a copy made directly from or compared with the original. If the first copy be lost or in the hands of the opposite party, so long as another may be obtained from the same source, no grounds can

be laid for resorting to evidence of an inferior or secondary character. 3 Waite, Law & Pr. (5th ed.) 444. So when secondary evidence is admissible, parol evidence of the contents of a document is admissible, although there is a copy of the document in evidence. Doe v. Ross, 7 Mees. & W. 102, 107; Best, Ev. § 87. But this rule is not universally recognized, and it has in many instances been held that the general rule applies also to secondary evidence, so that a copy of a copy is not evidence, although a copy of the original paper might be, in some cases. See People v. Riley, 15 Cal. 48; Reeve v. Long, Holt, 286; Liebman v. Pooley, 1 Stark. 167; Everingham v. Roundell, 2 Mood. & R. 138; Coman v. State, 4 Blackf. 241.

But though a press copy is secondary, it may be used as a means of determining the identity and genuineness of an instrument. Com. v. Jeffries, 7 Allen, 561, 83 Am. Dec. 712; Whart. Crim. Ev. 177.

The weight of authority favors the contention that a copy of a letter to the opposite party, cannot be given in evidence when no notice has been given to produce. Chicago v. Greer, 76 U. S. 9 Wall. 726, 19 L. ed. 769.

$48. Foundation for Secondary Evidence of Contents.When it becomes necessary to prove the contents of letters which have passed between parties, the originals must be produced, or the party desiring to give proof of their contents must lay the foundation for secondary evidence in the ordinary and usual way. Letter-press copies are in no sense original papers, and cannot be admitted in evidence without the preliminary proof. Foot v. Bentley, 44 N. Y. 166, 4 Am. Rep. 652; Marsh v. Hand, 35 Md. 123. When this proof has been given these copies are admitted as evidence.

§ 49. Views of the Massachusetts Supreme Court.-The Massachusetts supreme court has outlined the prevailing juridical view relative to this subject in an opinion by Chief Justice Bigelow. This decision although rendered in 1863, is unimpaired and the logic that originally supported it retains all of its force and vigor. The court admitted press or machine copies of certain letters, purporting to have been written by the defendant, to be read to the jury. These were adjudged competent on two grounds. Independently of proof that the originals were in the handwriting of the defendant, the copies were admissible as documents in his

possession, and to which he had constant access. They therefore furnished room for the inference that he was acquainted with their contents, and affected him with an implied admission of the statements contained in them. This is the ordinary rule of law applicable to papers found in the possession of a party. 1 Greenl. Ev. § 198, and cases cited. Evidence of a precisely similar character was admitted without objection in Com. v. Eastman, 1 Cush. 189, 48 Am. Dec. 596. Nor are we able now to see any valid reason for excluding it.

But upon another and distinct ground the court was of opinion that the evidence was admissible. The press copies, as they are called, were in fact proved to have been in the handwriting of the defendant. They were in truth a part of the original letters as written by him, transferred by a mechanical pressure to other sheets. But such transfer did not destroy the identity of the handwriting as shown on the impression, or render it unrecognizable by persons acquainted with its characteristics. These to a considerable extent it must necessarily still retain, so that a person having adequate knowledge could testify to its genuineness with quite as much accuracy as if he had before him the original sheets on which the letters were first written. Writings thus transferred are not unlike written documents which have been defaced or partially obliterated by exposure to dampness, rough usage, or the wasting effect of time. Such papers may not possess all the distinctive features of the original handwriting, but their partial destruction or obliteration will not render them inadmissible as evidence, if duly identified by testimony. A press copy, it is true, might furnish a very unsatisfactory standard of comparison by which to determine whether another paper, the handwriting of which was in controversy, was written by the same person, because the mechanical process to which it had been subjected in transferring it would, by spreading the ink and blurring the letters, necessarily somewhat affect its general resemblance. For this reason it was rejected when offered for such purpose in Com. v. Eastman, 1 Cush. 217, 48 Am. Dec. 596. But although incompetent as a means of comparison by which to judge of the characteristics of handwriting which is in dispute, it might still retain enough of its original character to be identified by a witness, when its own genuineness was called in question. Com. v. Jeffries, 7 Allen, 548, 83 Am. Dec. 712.

« ForrigeFortsett »