Bank of Charleston v. Emeric — 4 N.Y. Super. Ct. 718

Majority

p. 718

Bank of Charleston v. Emeric and Davenne.

Headnote

Where at the trial, documentary evidence which proves itself, and on which no question can arise in the cause, except such as is apparent on its face, is unadvisedly omitted, and an objection taken thereupon ; the court will nevertheless permit the document to be produced upon the argument of the case ; and if there be no surprise apparent, or any point in which the defence was prejudiced by the omission at the trial, the court will regard it as having been produced at the trial.

A co-defendant, who is primarily liable for the debt claimed, is, under the code, a competent witness for the plaintiff.

(Before Oakley, Ch. J., and Sandford, J.)

May 25, 1850.

The suit was brought to recover money advanced by the plaintiffs to Edward Davenne, in Charleston, for the purchase of cotton, on the joint account of himself and Emeric. Davenne drew a bill on E. for the advance, which E. did not accept. The bank, having retained the bill of lading of the cotton, sold the cotton, on failing to obtain satisfactory security from E,, and brought this suit to recover the balance. The defence was, that Davenne’s purchase was not on joint account, it not being conformable to the authority from Emeric, Upon the trial, the tes

p. 719

timony of Davenne, taken on a commission, was offered in evidence by the plaintiffs and received; Emeric objecting that he was not a competent witness.

The plaintiffs having closed their proof, the defendant Emeric moved for a non-suit, on the ground that they had not given proof that they were a corporation. The judge overruled the motion, and the plaintiffs had a verdict. The defendant moved for a new trial on a case. Several points were presented, the decision on which is not reported.

F. B. Cutting, for the defendant Emeric.

J. Larocque, for the plaintiffs.

On the case being moved for argument, the plaintiffs produced, and proposed to read, an exemplification in due form, of their act of incorporation by the legislature of the State of South Carolina; and the first question is as to the admission of this document.

We think they have a right to produce it at the argument. It ought, no doubt, to have been proved at the trial, and the omission to require it on the part of the judge, was erroneous ; but it is a well settled and useful practice, in respect of documents which speak for themselves, and on which no questions can arise except such as are apparent on their face, to permit them to be produced on the argument, when they have been inadvertently or unadvisedly omitted at the trial. As for example, the record of a judgment, when the execution only was produced at the trial. If it be apparent that there is any surprise upon the adverse party, or that there was or is any point in his case which is prejudiced, or has been weakened by the omission of the evidence at the proper time, it will not be received at the argument. But it is surely not worth while to send this cause back for another trial, merely to have this document, bn which no question arises, given in evidence. *

2. As to the competency of Davenne. The plaintiff by the code, was entitled to examine him as a witness against his co-defendant. (Section 390, 397.) Neither is he a person for whose

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immediate benefit the suit was prosecuted, within the meaning of section 399 of the code, if he had not been a party to the suit. That section applies only to a person into whose hands the money collected in the suit will necessarily go when it is received, or who might take it from the sheriff or the attorney as his own. It does not apply where the money cannot immediately, though it may ultimately go into his hands, as in the case of a stockholder in a suit brought by a corporation.

New trial denied.