Hyde v. Hepp

11 Rob. 159

• Court: Supreme Court of Louisiana
• Decided: June 15, 1845
• Status: Published

Opinion

Martin, J.

The plaintiff claims the value of two carriages of his, on which the present defendant caused a fi. fa. to be levied, and which were sold and purchased by him as the property of one of his debtors. The defendant pleaded the general issue, and averred that he bought the carriages on an execution from the Commercial Court. There was judgment against him, and he appealed.

Our attention is arrested by a bill of exceptions to the testimony of Avery, on the ground that his knowledge of the matter in controversy, being derived from correspondence between the plaintiff and one P. C. Rose, and that correspondence not being produced or accounted for, the testimony was secondary only, and not the best evidence. It does not appear to us that the court erred. The witness was a clerk of Rose, the person to whom the plaintiff had shipped the carriages to be sold on commission, and who is the defendant in the fi. fa. under which they were seized and sold. He is now dead. The witness derived his knowledge from the books and papers of the deceased, and the plaintiff’s correspondence with him. The plaintiff was certainly entitled to his testimony, and cannot be supposed to have the means of procuring the books and papers of the deceased, who resided in the State of Mississippi, nor the letters he wrote to him.

The testimony of this witness is corroborated by others, whose depositions alone might have supported the plaintiff’s case.

Judgment affirmed.