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eminent judge who delivered the opinion, in addition to deciding that the bonds were overdue when delivered to White & Chiles, and for that reason subject to an inquiry as to the man. ner in which they obtained possession of them, gave as an additional reason why defendants could not hold them as bona fide purchasers, that they had not been indorsed by the Governor as required by the Statute of Texas. And for that purpose he entered into an argument to show that the State could, by statute, while those bonds were in her possession, limit their negotiability by requiring as one of its conditions the indorsement of the Governor. He also said in reference to the repeal of that statute by the rebel Legislature of Texas, in view of the supposed treasonable purpose of it, that it was void. All of this, however, was unnecessary to the decision of that case, and the soundness of the proposition may be doubted.

84* *In the subsequent case of Texas v. Huntington, 16 Wall., 402, 21 L. ed. 316, which was an action at law in reference to some of the bonds in the same category as those now before us, the justice who delivered the above mentioned opinion, qualifies it so far as to say that the repealing statute, though passed by a rebel Legislature, is not void in its application to bonds not issued for treasonable purposes. This is sufficient to relieve the present case of any embarrassment growing out of that branch of the opinion in the case of Texas v. White.

This latter case, Texas v. Huntington, supra, on a careful examination of it, must be held to dispose of the one before us. It is said, among other things, "That no one other than a holder of the bonds, or one who having held them has received the proceeds, with notice of the illegal transfer, for an illegal purpose, can be held liable to the claim of the reconstituted State." Again; "Whether there was evidence in the present case establishing the fact of the unlawful issue and use, and the further fact of notice to defendants, within the principles heretofore laid down, as now explained and qualified, is a question for the jury."

In the case before us, which is a suit in equity, it was a question for the chancellor, to be established by evidence. As we have already said, there is no proof either of the unlawful issue or use, or purpose, nor of any notice to defendants of the probable existence of these facts. The decree of the Circuit Court is reversed, with directions to dismiss the bill.

Mr. Justice Swayne, concurring: I concur in the judgment of the court just announced, but as the case involves important legal principles I prefer to give my views in a separate opinion.

Pursuant to the Act of Congress of September 9, 1850, 9 Stat. at L., 446, the United States issued to the State of Texas their bonds to the amount of $5,000,000. They were denominated on their face "Texas Indemnity Bonds." They 85*] *all bore date January 1, 1851. Each one was for $1,000. It was certified on their face "That the United States of America are indebted to the State of Texas or bearer" in that sum, "redeemable after the 31st of December, 1864, with interest at the rate of five per cent. per annum, payable on the first days of January and July in each year, at the Treasury of the Unit

ed States, on presentation and surrender of the proper coupon hereto attached," and that the bond is "transferable by delivery." Coupons were attached extending to December 31, 1864. Texas received them and placed them in her Treasury. On the 16th of December, 1851, her Legislature passed an Act whereby it was provided "That no bond issued as aforesaid, as a portion of the $5,000,000 of stock payable to bearer, shall be available in the hands of any holder until the same shall have been indorsed in the City of Austin by the Governor of the State of Texas." A large portion of the bonds were indorsed by the Governor and disposed of pursuant to other Acts of the Legislature. Acts were passed from time to time appropriating other portions for different purposes. Some of these Acts prescribed a different mode of transfer, and some were silent upon the subject. Transfers were made in such cases without the Governor's indorsement. On the 11th of January, 1862, the provision requiring his indorsement was repealed. On the same day a Military Board was created and authorized to prepare the State for defense, and for that purpose to use the bonds still in the treasury to the extent of $1,000,000. This action was taken by the State with the view of engaging in the war of the rebellion, then impending, against the United States. On the 12th of January, 1865, the Military Board entered into a contract with White & Chiles, in pursuance whereof $135,000 of the bonds were sold and delivered to them. On the 15th of February, 1867, the State of Texas filed in this court an original bill against White & Chiles and others, wherein it was charged that the repeal of the requirement of the Governor's indorsement and the contract with White & Chiles were in aid of the rebellion and, therefore, void, and it sought to recover back the bonds or their value from [*86 White & Chiles and the other defendants to whom it was alleged White & Chiles had transferred portions of them. This court decreed against White & Chiles, 7 Wall., 700, supra. The case stood over as against Hardenberg, one of the other defendants. Subsequently a decree was rendered against him. 10 Wall., 68, supra. The State also sued William S. Huntington, at law, in the Supreme Court of the District of Columbia, for the conversion of certain of the bonds redeemed at the Treasury, the proceeds whereof had gone to him. The State recovered as to thirteen of these bonds and failed as to the residue. The judgment was brought to this court upon error and reversed. 16 Wall., 402, supra.

The case made in the record before us by the complainant, so far as is necessary to state it, is as follows:

It is alleged that the Military Board for insurrectionary purposes sold and delivered to White & Chiles one hundred and thirty-five of the bonds; that thirty-three of these bonds, after becoming past due, were sold to the Bank or were placed in its hands to collect for White & Chiles, with full knowledge of the manner in which White & Chiles had obtained them, and in bad faith on the part of the Bank; and that the bonds had never been indorsed in such manner as to pass the title out of the State of Texas. The prayer is that the Bank be enjoined from receiving the amount due on the bonds from the

United States; that they may be delivered up to the State, if still in the possession of the Bank, and if not, that the Bank may be decreed to pay their value to the State. A copy of the contract of the Military Board with White & Chiles is annexed to the bill.

The Bank and Huntington answered jointly. The answer, among other things

Denies all knowledge of the transactions between the Military Board and White & Chiles; it denies that they hold or claim the bonds described in the bill; it denies that they were in any way the agents of White & Chiles or bought any bonds from them; it denies that they had 87*] any knowledge that their bonds came through White & Chiles; it avers that they had heard there would be difficulty about the White & Chiles bonds, and before purchasing made diligent inquiry at the Treasury Department; that no one there could identify the bonds in question as White & Chiles' bonds, and that the Bank bought them believing they were not such; it avers that they knew the Secretary of the Treasury had paid similar bonds, and gives a large list of such bonds; it denies all knowledge of White & Chiles.

The court below decreed against the Bank for the value of nineteen bonds and interest. Those bonds are numbered in the decree as follows: 4226, 4227, 4229, 4703, 4705, 4706, 4748, 4813, 4825, 4843, 4844, 4912, 4927, 4928, 4929, 4960, 4961, 4962 and 4963.

The Bank removed the case to this court by appeal, and it is now before us for review. The complainant did not appeal. This defines the ground of the controversy in this court between the parties and narrows the circle of inquiry to the bonds numerically specified in the decree. There is neither proof nor admission in the record of the execution of the contract of the Military Board with White & Chiles. It must, therefore, be laid out of view.

Averments by the complainant, vital in the case, are denied by the answer. The answer is responsive and the denials absolute. This throws the burden of proof upon the complainant, and the denials are conclusive unless over come by the testimony of two witnesses to the contrary; or the testimony of one witness. and circumstances established otherwise equal in effect to the direct testimony of another.

The effort of Texas to leave the Union was revolutionary. All her legislative Acts for the accomplishment of that object were void. Her position has been aptly resembled to that of a county in rebellion against the State. Hickman v. Jones, 9 Wall., 197, 19 L. ed., 551. While her enactments outside of the sphere of her 88*] normal authority were *without validity, those within it, passed for the ordinary administration of her powers and duties as a State, had the same effect as if the rebellion had not occurred. The latter principle springs from an overruling necessity. A different rule would involve the dissolution of the social compact, and resolve society back into its original elements.

The repeal touching the Governor's indorsement was an act of ordinary legislation. It was, therefore, within the rule last mentioned. If it had in view the promotion of the rebel cause it was too remote from that end, and its tendency too indirect to render it fatally liable to that objection. The repeal put an end to the

existence of the restriction. But if the restriction had not been repealed I cannot admit that the want of the indorsement would have in anywise affected a bona fide holder; or, in other words, one who had honestly bought the bonds for a valuable consideration without knowledge of any infirmity in the title of his vendor. The United States made them payable "to the State of Texas, or bearer." Delivery passed the title, Texas could not restrain their transferability in the markets of the world, according to the law merchant, in any case, without bringing home notice to the party sought to be implicated or putting upon the bonds something which must necessarily operate as a notice to every buyer.

Winston v. Westfeldt, 22 Ala., 760, has an important bearing upon this subject. There the holder of a promissory note had been enjoined from transferring it. He transferred it, underdue, by indorsement. The indorsee gave a valuable consideration and took it without notice of any defect. It was held that the title of the indorsee was valid, notwithstanding the injunction.

The fact that the bonds were overdue when the Bank bought them does not affect the case. The transferee of overdue negotiable paper takes it liable to all the equities to which it was subject in the hands of the payee. But those equities must attach to the paper itself, and not arise from any collateral transaction. A [*89 debt due to the maker from the payee at the time of the transfer cannot be set off in a suit by the indorsee of the payee, although it might have been enforced if the suit had been brought by the latter. Burrough v. Moss, 10 B. & C., 558; Whitehead v. Walker, 10 Mees. & W., 696; Hughes v. Large, 2 Pa. St., 103; Gullett v. Hoy, 15 Mo., 400; Story, Bills, sec. 220.. The result is the same whether the transfer be made by indorsement or delivery. But the protection of this principle is confined to the maker or obligor. It does not apply as between successive takers. Actual notice is necessary to affect them. There is no adverse presumption. Each one takes the legal title, and his equity is equal to that of his predecessors. "The equities being equal, the law must prevail." Judson v. Corcoran, 17 How., 614, 15 L. ed., 232. The position of the transferee must be at least as favorable as that of the assignee of a chose in action. There the assignee takes subject to the equity residing in the debtor, but not to an equity residing in a third person against the assignor.

Chancellor Kent, speaking of this rule in this class of cases, says: "The assignee can always go to the debtor and ascertain what claims he may have against the bond or other chose in action which he is about purchasing from the obligee, but he may not be able with the utmost diligence to ascertain the latent equity of some third person against the obligee. He has not any object to which he can direct his inquiries, and for this reason the assignee, without notice, of a chose in action, was preferred in the late case of Redfearn v. Ferrier, 1 Dow, 50, to that of a third party setting up a secret equity against the assignor. Lord Eldon observed in that case that if this were not so no assignment could ever be taken with safety." Murray v. Lilburn, 2 Johns. Ch., 443. This reasoning is strikingly applicable in the case before us. It was the duty of the cashier to inquire at

the Treasury Department. He did so, and learned that there was no objection to any of the bonds but those which had been delivered 90*] to White & Chiles, and he became satisfied that those involved in this controversy did not belong to that class. It was impossible for him to find and consult all those through whose hands they might have passed before they were offered to the Bank.

If negotiable paper, underdue, be in the hands of a bona fide holder, any subsequent holder may avail himself of that fact against the equity of the maker. 3 Kent, Com., 92; Chit. Bills, 221; Smith v. Hiscock, 14 Me., 449; Fairclough v. Pavia, 9 Exch., 690; Oulds v. Harrison, 10 Exch., 579. Every holder is presumed to have acquired his title before the maturity of the instrument and bona fide. The burden of proof rests upon the party alleging the contrary. Byles, Bills, 165. It is only in case of dishonor that the equities of the maker, or obligor, can be set up against a bona fide holder. It may be doubted whether these bonds belonged to that class. 9 Op. Atty-Gen., 413; 11 Id., 332. I have preferred to consider the case in this aspect, upon the hypothesis most favorable to the complainant. It is unnecessary to resolve, in this case, either way the doubt suggested.

The rights of the holders of commercial paper were largely considered by this court in Goodman v. Simonds, 20 How., 343, 15 L. ed., 934, and in Murray v. Lardner, 2 Wall., 110, 17 L. ed.. 857. What was there said need not be repeated.

It remains to consider the case in the light of the evidence. In order to maintain the decree it is necessary for the complainant to establish the following facts:

(1) That the bonds specified in the decree were of those disposed of by the Military Board to White & Chiles;

(2) That the transaction was in aid of the rebellion;

(3) That the Bank, before it bought, had notice of the infirmity of the title of White & Chiles.

And these facts must be established by the measure of proof requisite to overcome the responsive denials of the answer.

It is shown by the complainant's own testimony-and there is none to the contrary-that 91*] six of the bonds here in *question were transferred and delivered by the authorities of the State pursuant to an Act of the Legislature to the Southern Pacific Railroad Company. They are numbered 4703, 4705, 4706, 4748, 4813 and 4825. It is proved by the same testimony that four more were not of those delivered to White & Chiles.

They are numbered 4960, 4961, 4962 and 4963. It is also proved that five of the bonds, Nos. 4843, 4844, 4927, 4928 and 4929, were sold to the Bank by Jay Cooke & Co. It is not shown when Cooke & Co. acquired them. It is, therefore, presumed they bought them underdue and bona fide, and their title inures to the benefit of their vendee. Three of the bonds, Nos. 4226, 4227 and 4229, were bought by the Bank of Wolf. There is some testimony tending to show that he bought after they were due. But there is no such proof as to his vendor. The presumption as to the latter is, therefore, otherwise. This ends the controversy as to these eighteen bonds. The remaining bond is No. 4912.

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"Q. Do you know, of your own knowledge, that White & Chiles, or either of them, ever saw one of these bonds?

A. I know it only from the papers on file in the department; that is, from my opinion of what those papers show.

They are too numerous for me to present here now, and I might add, that one would have to study them very carefully, and make his calculations as to the different bonds.

It would be by taking the seven hundred and eighty-two bonds that were not indorsed, and tracing them back by the evidence into the hands of those parties who held them at different times, and ascertaining, in some instances, the particular numbers that were known to be in the hands of particular parties before [*92 the transaction between White & Chiles and the Military Board, and taking others, again, that came from the State of Texas, and then drawing my conclusions as to what were White & Chiles' bonds." Deposition of Mr. Taylor, Record, p. 37.

With these admissions before us it is sufficient to remark that his testimony is clearly incompetent. Armstrong v. Boylan, 1 South., 76; Morehouse v. Mathews, 2 N. Y., 514. And, if not so, it would be insufficient to maintain, in behalf of the complainant, the issue between the parties. The same remarks are applicable to the testimony of Judge Paschal. So far as it affects this case it is liable to the same objections. He says, among other things: "I was employed by Governor Pease to prosecute this suit, and caused it to be instituted in 1868; and judging from a careful examination made in Texas, and in the Treasury Department here, I feel confident that the bonds redeemed for the Bank, described by Mr. Taylor, were a part of the bonds which passed through the hands of White & Chiles, and I judge this from the circumstances which he has stated." This is mere opinion, founded upon data not disclosed and in part upon the opinion of another witness. Further remarks upon the subject are unnecessary. There are other defects in the evidence for the complainant, but it is unnecessary to advert to them. Altogether it fails wholly to sustain the case made by the bill. The decree of the court below is, in my opinion, properly reversed.

*OSCAR A. BURTON, Plff. in Err., [*125

V.

WILLIAM S. DRIGGS.

(See S. C., 20 Wall., 125-137.) Grounds of objection, when must be statedsecondary evidence-instructions to jury.

1. Where a party excepts to the admission of tes

NOTE--What particularity in exceptions is nec essary in order to review in appellate court; general exception or objection, when not sufficientsee note to Moore v. Bk. of Metropolis, 10 L. ed. U. S. 172.

timony, he is bound to state his objection specif- | he explained to defendant in error, at the time cally, and in a proceeding for error he is confined of the assignment to him, that such was the

to the specific objection so taken. If he assign no ground of exception, the mere objection cannot

avail him.

2. The rule, that the contents of any written instrument lost or destroyed may be proved by competent evidence, applies to depositions. Where a deposition is lost, a party is not bound to supply its place by another, but may give parol evidence of

Its contents.

3. Where books of a bank are out of the State and beyond the jurisdiction of the court, secondary evidence to prove their contents is admissible. When it is necessary to prove the results of voluminous facts or of the examination of many books and papers and the examination cannot be conveniently made in court, the results may be proved by the person who made the examination.

4. Where the instructions given to the jury covered the whole case, it is not the duty of the judge to give others suggested by either party.

[No. 284.]

Argued Apr. 10, 1874. Decided Apr. 20, 1874.
IN
of
N ERROR to the Circuit Court of the United

This was an action of assumpsit, brought by Driggs, the defendant in error, and was tried by a jury on the plea of the general issue.

The defendant in error on the trial gave evidence to show that he was applied to in the City of New York by the plaintiff in error, who proposed to sell and assign to him a certain claim which he, plaintiff in error, pretended to have against the Tioga County Bank, in the State of Pennsylvania. The claim was pretended to be evidenced by a certain paper, signed by the plaintiff in error and three other persons, and contained in the record. This paper recited, in substance, that the plaintiff in error and the other signers had each advanced to that bank the sums therein specified, to enable the bank to redeem its circulation, which sums were to be refunded by the bank; and that, in the meantime, the bank agreed to loan the parties, on paper payable in New York, not exceeding $10, 000 at any one time, at five per cent. interest. The plaintiff in error represented that the facts recited in this paper (called A) were true; that he had advanced to the bank the sum of money and upon the terms therein stated, and was a creditor of the bank therefor. The defendant in error relying upon sentation, and believing it to be true, and having no knowledge or reason to suspect the contrary, purchased the pretended claim of the plaintiff in error against the bank, paid him for it the sum of $7,060.18, with interest from the date of the pretended advance, and took an assignment of it in writing.

this repre

On application to the bank in Pennsylvania, the defendant in error learned that the whole statement of the plaintiff in error, as well as the recital in the paper A, was false; that no such transaction with the Tioga County Bank had ever taken place; that the plaintiff in error had not and never had such a claim or any other claim against the bank, the officers of which did not know him and had never had any dealings with him.

The plaintiff in error did not attempt to controvert these facts; but admitting that he had no such claim against the bank as recited in the paper (A) set up in defense that he did in fact own certain powers of attorney to transfer stock in that bank, executed by parties who owned such stock, and for which he paid $10,000; that

real nature of the claim transferred to him, and delivered to him these powers of attorney; and that defendant in error received them, and subsequently acted under them, participated in an election of directors, and assisted in redeeming the circulation of the bank.

In reply, the defendant in error, introduced evidence to show that this defense was entirely false.

Upon these facts the defendant in error claimed to recover back the money paid by him to the plaintiff in error, upon the grounds:

1. Of the warranty of the plaintiff in error, both express and implied, that the claim described in the paper (A) and assigned to the defendant in error, was genuine.

2. That the money was obtained from the defendant in error by the plaintiff in error by fraud and without equivalent.

3. That the consideration upon which the money was paid and received had totally failed. the law was with the plaintiff upon the quesThe court, after intimating an opinion that if the facts claimed by the plaintiff were made tions of warranty and failure of considerations, out, ruled that, for the purposes of the present trial, the case would be submitted to the jury only upon the question of fraud; and upon that subject the court instructed the jury, in substance, as follows: that they were to inquire what the real transaction was between the defendant and the plaintiff, as shown by the evidence; what were the representations actually made by the defendant to the plaintiff; were they true; and what, if anything, did the plaintiff realize from the transaction; that, in this view of the case, the paper (A) might be regarded only as evidence, in connection with the other evidence, of what the representations of the defendant actually were; that it was not denied that the plaintiff paid the defendant the attached to the paper (A); that the jury would sum of money claimed and took the assignment then inquire, whether the representations of the defendant, which included that transaction, were such as the paper (A) and the evidence for the plaintiff tended to show, or whether they were such as the defendant claimed them

to have been; that if the statements there made. by the defendant were such as his evidence tended to show, the plaintiff could not recover in this action; that if the statements and representations claimed by the plaintiff were proved to have been made, the jury would then inquire whether they were true.

Tioga County Bank as he had represented? If Had the defendant any such interest in the the representations were not true, did the plaintiff receive or realize anything under the assignment in any way? If he did not get the interest described in the paper (A) did he get, under the assignment, any other interest or equivalent? Did he receive from the defendant the stock, or interest in the stock of the bank,

that defendant claimed to have transferred to

him? That, under the assignment, any interest the defendant actually had in the bank, if any, passed to the plaintiff. Had the defendant, then, any such interest as described in the assignment, or any actual interest in the bank?

And for the purposes of the trial, the jury were instructed: that, if the plaintiff, under the

assignment or in the transaction in question, re- | ceived or acquired any interest whatever in the bank, either such as paper A purported to describe, or such as the defendant claimed to have transferred to the plaintiff, the verdict should be for the defendant. But if the representations of the defendant were such as were claimed by the plaintiff and were untrue in point of fact, and the plaintiff received nothing from the defendant, under the assignment or out of the transaction, then the verdict should be for the plaintiff.

These instructions were explained and applied to the evidence.

Verdict and judgment were for the plaintiff. A motion for a new trial was made and overruled, and the case brought to this court by writ of error.

The nature of the exceptions appears in the opinion.

Messrs. Daniel Roberts, L. P. Poland and B. B. Smalley, for plaintiff in error:

The circuit court erred in admitting in evidence the paper, claimed to be a copy of the deposition of Vine De Pue.

No Statute of Congress authorizes the use of a copy of a deposition as evidence, where the original is lost.

No decision of the court is found which sanctions this.

The decision made must rest for its justification upon the common law doctrine, that secondary evidence is admissible, when the primary cannot be had; as parol evidence of the contents of a lost writing.

But there are good reasons why this doctrine should not be extended to the case of lost depositions:

1. The statutes, authorizing the use of depositions in cases at law, are exceptional, varying from common law, and imply the existence of a better kind of evidence, viz.: the testimony of the witness in open court; and they allow depositions only in peculiar cases, and to prevent a possible failure of justice. As far, therefore, as the statutes go, we may follow, but no further. Depositions themselves are regarded as only secondary evidence.

Haupt v. Henninger, 37 Pa., 138.

2. The rule requiring the best evidence attainable to be used in the cause, demands that the witness, being in life, should be produced, not to testify to what he once testified in a dep: osition, but what he at the time of the trial knows of the matter. For this (the best evidence) the statute allows, in peculiar cases, an inferior grade, viz.: a deposition made out of court; but goes no further. The common rule then should exclude evidence of a still inferior grade (as, a copy of a deposition) so long, at least, as the testimony of the witness in court, or a new deposition can be maintained.

3. It might be safely admitted, that if the witness, De Pue, had deceased, the contents of his deposition, being lost, might be proved; for, in such case, this would have been the best attainable evidence.

Eng. C. L., 358); Follett v. Murray, 17 Vt., 530; Low v. Peters, 36 Vt., 177.

As to the deposition of Turner, the defendant below claimed that he had advanced certain money for the benefit of Tioga County Bank, and that he had certain powers of attorney which entitled him to stock in that bank, and represented stock. The plaintiff below met this claim by evidence that there was not, upon the books of said bank, any evidence of the existence of such claim.

1. These books, so called, were but private writings and memoranda, and were not evidence, per se-certainly not as to strangersthough admissible, perhaps, as memoranda, in aid of the testimony of the party making them. They were used purely as substantive evidence.

2. Before the admission of secondary evidence of the contents of the books, more especially evidence of what does not appear upon the books, it should have been proved that the bank had and kept books, and their authenticity that those books had upon them, in regular entry, items and all items of the class represented by the said defendant's claims. It is only in such case that the absence of an entry representing the defendant's claim could furnish an inference of the non-existence of the claim.

No preliminary evidence of this kind was given, but these preliminary facts were assumed.

Highland Turnpike Co. v. McKean, 10 Johns., 154.

The contract in this case, as well as the assignment, were instruments under seal. An action of assumpsit, therefore, could not be maintained, which counted upon the instrument. Young v. Preston, 4 Cranch, 239; 1 Ch. Pl., 103.

Mr. E. J. Phelps, for defendant in error.

Mr. Justice Swayne delivered the opinion of the court:

This is a writ of error to the Circuit Court of the United States for the District of Vermont. The action was assumpsit. The defendant in error was the plaintiff in the court below, and recovered the judgment which is sought to be reversed in this proceeding.

The first assignment of error relates to the admission in evidence of a copy of the deposition of Vine De Pue. The bill of exceptions sets forth that the original deposition was regularly taken, sealed up and transmitted to the clerk of the court where the cause was pending, and by him properly opened and filed; and that thereafter it was lost and could not be found; and that the copy offered was a true copy, taken under the direction of the clerk, and by him compared and certified. The exception is as follows: "The defendant objected to the copy on the ground that it was not the original. The court overruled the exception and admitted the deposition, to which decision the defendant excepted."

It is a rule of law that where a party excepts to the admission of testimony he is bound to state his objection specifically, and in a proceeding for error he is confined to the objection so taken. If he assign no ground of exception, the mere objection cannot avail him. Camden Brown v. Woodman, 6 Car. & P., 206 (25 v. Doremus, 3 How., 515; Hinde v. Longworth,

But it would be a dangerous precedent and practice to allow secondary evidences of the contents of depositions, except in case of such absolute necessity.

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