Supreme Court of United States.
*469 The case was now here on error: Mr. Maynard, for the plaintiff in error, contending.
Mr. Browning, contra.
*473 Mr. Justice DAVIS delivered the opinion of the court.
It is contended by the defendants in error that the rulings of the Circuit Court, which are alleged to be erroneous, were not saved during the progress of the trial, and cannot, therefore, be investigated here. If this was so, it would be fatal; but we do not thus interpret the record. It is well settled that bills of exception are restricted to matter which occurred during the progress of the trial; but it is not necessary, neither is it the practice, to reduce to form every exception as it is taken, and before the trial is at an end. It will do for the judge to note them as they occur, and after the trial is over, if it is desirable to preserve them, they can be properly embodied in a bill of exceptions. In this case the bill of exceptions is unskilfully drawn, and is justly subject to criticism; but it clearly enough appears that the rulings of the Circuit Court, which are sought to be reviewed here, were excepted to in proper time, and when the cause was on trial, and not afterwards.
*474 If this is so, we cannot allow a valuable right to be defeated, because the judge carelessly used a word in the present tense, when the true expression of his meaning required the use of a word in the past tense.
It is a fair inference from the bill of exceptions that the defendants excepted to the introduction of secondary evidence of the contents of certain letters, when the court decided to admit it; and it is an equal inference that they also excepted, before the jury retired from the bar, to each of the series of instructions which the court gave to the jury. The bill of exceptions is, therefore, valid, and brings to our notice the proceedings of the Circuit Court, which, it is asserted, are erroneous.
The theory of this action is, that the defendants in error, who resided in Baltimore, Maryland, in March, 1858, addressed two letters to Jones, an attorney-at-law, in Rogersville, Tennessee, which, in his absence, were opened and read by Duff, one of the plaintiffs in error, and their contents communicated to his copartners, and then were detained for the purpose of obstructing the defendants in error in the prosecution of an attachment suit against the indebtedness which the plaintiffs in error owed to Dunham & Kearfoot, a mercantile firm, also resident in Baltimore. These letters were not produced on the trial, and the court permitted Jones to testify as to his recollection of their contents. This action of the court was excepted to, because no sufficient evidence of their loss had been made to justify it. The best evidence in the power of the parties must always be furnished, and the court was not authorized to allow secondary evidence of the contents of these letters to go to the jury, unless it was shown that they were either lost or destroyed.
The well-settled rules of evidence require this, and the danger of departing from them is well illustrated in this case; for on the important point of the dates and amount of the notes the testimony of the witness was imperfect, and wanting in clearness and precision. In order to show the *475 loss of the letters, it was necessary to prove that a diligent search had been made for them where they were most likely to be found. There is no general rule as to the degree of diligence in making the search; but the party alleging the loss is expected to show "that he has, in good faith, exhausted, in a reasonable degree, all the sources of information and means of discovery which the nature of the case would naturally suggest, and which were accessible to him."[*]
In the case before us this plain rule of evidence was palpably violated; for there was no diligence whatever used to obtain the letters, and no such search as would justify the court in inferring that they were lost.
J.R. Cocke, the attorney, went to the place of trial, under the belief that Jones, who was to be a witness, had the letters and would bring them. Jones was in the same category. Neither had made any special search for them, for each rested in the conviction that the other was the custodian of them. It was a case of pure negligence, and should have been so treated by the court. To approve the ruling of the court would justify the admission of secondary evidence on the merest pretence, and would do away entirely with the necessity of producing primary evidence. We cannot countenance a practice so loose, and such a manifest departure from the plainest legal principles.
The decision on this point remits the cause to the Circuit Court; but as it may be tried again, we are called upon to go further and decide the merits of this controversy, as they are involved in the instructions which the court gave to the jury.
Among other things, the court substantially charged the jury, that if Simpson, Duff & Co. were about to remove their property beyond the limits of the State, Dall, Gibbon & Co. would have the right to attach it, and that they could not pay their debt to Dunham and Kearfoot, who were insolvent, *476 so as to defeat the measures which Dall, Gibbon & Co. had in contemplation to prevent it. Such a doctrine as this would effectually destroy credit and commerce.
If Simpson, Duff & Co. were indebted to Dunham & Kearfoot, they surely had a right to pay them, and the court will not inquire into the motive which prompted the payment. But the motive was meritorious, for the law does not favor a partial appropriation of an insolvent debtor's effects, but prefers an equal and general distribution. When the debt was contracted in Baltimore, both parties contemplated that, in the usual course of dealing, remittances or negotiable securities would be sent from Tennessee to discharge it, and it would be singular if the fact that Simpson, Duff & Co. were about to remove their property from Tennessee, in order to comply with their agreement, should authorize the issue of an attachment.
The mere statement of the proposition is enough to show its fallacy. Dall, Gibbon & Co. had no claim against Simpson, Duff & Co. The relation of debtor and creditor did not subsist between them, and we cannot see why it was necessary for these last to procure the consent of Dall, Gibbon & Co. before they could send money and negotiable notes to pay in good faith an honest debt, due to a mercantile firm residing in Baltimore, which was contracted there, and in the usual course of trade must be paid there.
But it is necessary to discuss the evidence in the case, as the charge of the court assumed that there was a cause of action. Duff and Jones were intimate friends, and to a degree not often seen, for Duff was permitted to open and read certain letters written by Jones, which are not generally read by third persons. Duff had for years been authorized to take the letters of Jones out of the post-office at Rogersville, and to forward them when he was absent, and the postmaster always put them into the box of Simpson, Duff & Co. Jones and J.K. Simpson (the active member of the firm) were connected by marriage; and Cocke, who wrote the letters from Baltimore, was also his relative, and a member of the firm of G.W. Howard & Co., whose name *477 was stamped on the envelopes. This fact Duff knew, and as his house had no dealings with Howard & Co., it was very natural for him to suppose that the letters were on business requiring prompt attention, which, as an act of kindness, he ought to give to it, during the absence of Jones.
Cannot Duff's authority to open these letters be fairly inferred from these circumstances, and who can say that he erred in doing so? It is true that he committed an error in not informing Jones that he had opened them, but no harm resulted from that omission. The right to open them cannot be affected by what occurred afterwards. These letters were not detained, but were immediately resealed and forwarded to Florence, Alabama, where Jones lived. There is absolutely no evidence raising a presumption even that they were withheld. Duff was probably to blame for telling Simpson the purpose for which they were written; but he could hardly have refrained from doing so; and if he obtained the information rightfully, what principle of law or morals prevented Simpson, Duff & Co. from paying their Baltimore creditors, who had indulged them, and were then pressing them for payment? If they had acted otherwise, they would have been justly censurable. Their obligation was to Dunham & Kearfoot, not to Dall, Gibbon & Co., and the information obtained simply hastened the payment of an overdue debt, which they had for some time been endeavoring to procure exchange to discharge.
But if Duff had not opened the letters, is it not manifest that Jones, on his arrival in Rogersville, would have communicated their contents to Simpson?
Jones swears that he would, on account of their intimacy, and because Cocke had directed him to do so. And if Dall, Gibbon & Co. authorized their attorney to consult Simpson, and give him the same information which Duff did, how can they complain of the manner in which the information was obtained?
The procurement of Cocke, who had nothing to do with the matter, to select an attorney in Tennessee, who was his *478 relative and also a relative of one of the Simpsons, was a contrivance to obtain more surely and easily the information on which the proceedings in attachment could be founded. The scheme was a failure, and Dall, Gibbon & Co. have no just right to complain. They are in no proper sense the losers by the conduct of Duff. The result would have been the same if Jones had got the letters unopened, for he would have told Simpson what he wanted; and it is easy to see that, instead of responding to his request, the firm would, in obedience to a plain sense of duty, have paid their just debts to their own creditors.
On what basis, then, can this claim be sustained? The examination of the record discloses none, and we are unable to supply the omission.
The judgment of the Circuit Court is reversed, and a
NEW VENIRE AWARDED.
[*] 1 Greenleaf on Evidence, ยง 558.
