Hemphill v. Townsend

Supreme Court of Alabama

Hemphill v. Townsend

7 Ala. 853

DecidedJanuary 15, 1845

StatusPublished

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Bluebook

Hemphill v. Townsend, 7 Ala. 853 (Ala. 1845).

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Opinion

ORMOND, J.

— The object of giving notice, to produce a paper in the possession of the opposite party, is to enable him, by producing it, to prevent the necessity of his submitting to secondary evidence of its contents. The length of the notice, must, therefore, depend on the circumstances of the case ; but if it be shown that the paper is in the possession of the party, in Court, one day’s notice, or even a much shorter time, has been considered sufficient. [Utica Ins. Co. v. Caldwell, 3 Wend. 296.] We do not entertain a doubt that the - notice in this case, was ample. The claimant, it appears, was present, and in possession of the deed, and if he did not think proper to produce it, should have been required to submit to secondary evidence of its contents.

There was no necessity for giving notice to produce the deed, when the deposition of the witness was taken. If it had been there produced and shown to the witness, it would not have superseded the necessity of giving notice at the trial, to produce it, before reading the deposition of the witness, proving its contents. As the claimant was under no obligation to produce it at the trial, it was necessary for the plaintiff to be prepared with evidence of its contents, if not produced on notice.

There is nothing in the objection, that the deed was not shown to have been delivered, as the plaintiff was not permitted to prove any thing relating to it; but in point of fact, it appears to have been delivered, as it was for a considerable time in the possession of the witness.

As the defendant in execution was a competent witness, it follows that his wife was also. He is admitted upon the principle, that his interest in the question is balanced; and that although he may be presumed to have a leaning in favor of the claimant, it goes to his credibility, and not to his competency. By the same process of reasoning, the competency of the wife is shown, as her interest is indentical with his.

For the error of the Court, in excluding the deposition of the witness, the judgment must be reversed, and the cause remanded.

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ORMOND, J.

— The object of giving notice, to produce a paper in the possession of the opposite party, is to enable him, by producing it, to prevent the necessity of his submitting to secondary evidence of its contents. The length of the notice, must, therefore, depend on the circumstances of the case ; but if it be shown that the paper is in the possession of the party, in Court, one day’s notice, or even a much shorter time, has been considered sufficient. [Utica Ins. Co. v. Caldwell, 3 Wend. 296.] We do not entertain a doubt that the - notice in this case, was ample. The claimant, it appears, was present, and in possession of the deed, and if he did not think proper to produce it, should have been required to submit to secondary evidence of its contents.

There was no necessity for giving notice to produce the deed, when the deposition of the witness was taken. If it had been there produced and shown to the witness, it would not have superseded the necessity of giving notice at the trial, to produce it, before reading the deposition of the witness, proving its contents. As the claimant was under no obligation to produce it at the trial, it was necessary for the plaintiff to be prepared with evidence of its contents, if not produced on notice.

There is nothing in the objection, that the deed was not shown to have been delivered, as the plaintiff was not permitted to prove any thing relating to it; but in point of fact, it appears to have been delivered, as it was for a considerable time in the possession of the witness.

As the defendant in execution was a competent witness, it follows that his wife was also. He is admitted upon the principle, that his interest in the question is balanced; and that although he may be presumed to have a leaning in favor of the claimant, it goes to his credibility, and not to his competency. By the same process of reasoning, the competency of the wife is shown, as her interest is indentical with his.

For the error of the Court, in excluding the deposition of the witness, the judgment must be reversed, and the cause remanded.

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Bluebook (online)

7 Ala. 853, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hemphill-v-townsend-ala-1845.

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