Majority
p. 228Timothy Sabin vs. Wyllys Ames.
Headnote
Where there is reason to believe there has been collusion on the part of a defendant to keep back important testimony of the plaintiff at the circuit, motion for judgment as in case of non-suit for not trying the cause, will be denied, with costs.Motion by defendant for judgment as in case of non-suit, after stipulation to try at the Delaware circuit.—This was an action for libel, the letter containing the libel, was written by Ames the defendant in the name of the firm of Ames & Rood, to one Gilbert; the plaintiff procured ! a copy of the letter from Gilbert, and several weeks before the circuit subpoenaed Gilbert with a subpoena duces tecum to produce the original letter on the trial. Gilbert informed plaintiff that the letter had been delivered to defendant Ames. The plaintiff immediately notified defendant and his attorney to produce the letter on the trial, or that parol evidence would be given of its contents. Plaintiff then subpoenaed his witnesses and attended the circuit intending to try the cause. The defendant Ames at the circuit informed plaintiff that previous to his receiving notice to produce the letter on the trial, his partner Rood took the letter and refused to give it up to him, and that Rood was then in the city of New York.
P. Cagger, Defts Counsel. Horace Dresser, Defts Jltty.
R. W. Pecicham, Plffs Counsel. Bowne and Crippen, Plffs Attys.
Plaintiff insisted that the change of possession of the original letter was a trick, to avoid its production on the trial at the circuit, and in consequence thereof, it was too late for him to procure the testimony of Rood at the circuit, or his refusal to attend, so that parol evidence could be given of its contents.
Denied theunotion, with costs, for that reason.