COOPER v. MADDAN

COOPER v. MADDAN. 1. Where sixteen judgments, between the same parlies were rendered by a jus. tice of the peace, and removed by certiorari to the county court, it was com* petent for the court to direct that but one bond should be executed, as the condition on which the certiorari and supersedeas should issue. 2. Where several suits are depending between the same parties, on appeal or by certiorari from the judgment of a justice of the peace, the court may, at the instance of cither party, direct a consolidation, unless the party objecting can show that he will in some way be prejudiced thereby. 3. The admission of a party against whom secondary evidence of the contents of a written instrument is offered to be given, that the instrument is lost, will be sufficient to let in the inferior proof. EbROR to the County Court of Russell. This was a proceeding commenced before a justice of the peace on sixteen notes by the plaintiff, against the defendant in error, and judgment being obtained by him in all the cases, the latter removed the causes by certiorari. to the county court of Russell. In the county court, the plaintiff moved to dismiss the certiorari on the ground that the bond was insufficient, which the court refused — and on the defendant’s motion, the cases were consolidated, the plaintiff objecting thereto. The plaintiff then introduced the justice of the peace, and proved by him, that the notes which had been sued on, could not be found by him, after diligent search, and that he had inquired of his two predecessors, the first of whom had rendered the judgment on the notes, and neither of them were able to find them, but the court held this insufficient to authorise the introduction of secondary evidence to prove their contents. The plaintiff then offered to prove that the defendant had admitted that the notes were lost, as a ground for the admission of the secondary proof, but the court rejected it, considering it insufficient. The plaintiff then offered to prove that the defendant had admitted that he was indebted to the plaintiff in the sum of five hundred and fifteen dollars, which evidence the court rejected. To all v hich the plaintiff excepted, and now assigns for error, 1. The court erred in refusing to dismiss for want of a sufficient bond, or in not requiring new bonds. 2. In consolidating the cases against the consent of the plaintiff. 3. In refusing to admit secondary evidence of the contents of the notes. 4. In refusing to admit proof of defendant’s indebtedness. Heydenfeldt, for plaintiff in error cited 1 Ala. Rep. 77; 2 ib. 58. [MAJORITY — ORMOND, J.] ORMOND, J. We are unable to perceive any objection to the course pursued by the judge of the county court, in requiring but one bond to be given, as the condition on which the certiorari and supersedeas were to issue. It could subserve no valuable purpose to require sixteen bonds to be executed, when the same defence existed to all the judgments, and the rights of the plaintiffs could be fully secured by one. The certiorari should not, therefore, have been dismissed for this cause, and if the bond was defective, the defect should have been pointed out, that it might have been re'medied by the execution of a new bond. In Powell v. Gray, [2 Ala. 77,] we held that a writ of error would not lie upon the refusal of the court to consolidate several cases depending between the same parties, but the question is different where the court has directed a consolidation. In such a case, if injury has resulted to the party objecting to it, it could doubtless bo redressed on error. But it is difficult to conceive that any injurious consequences could flow' from such an order in this case, nor indeed, how it could be otherwise than beneficial to both parties. It was the duty of the party objecting to the consolidation, to show that it would in some way prejudice him, and in the absence of any such suggestion, we must presume that no such obstacle exists to the exercise of the power. Where secondary evidence is proposed to be offered of the contents of a written instrument, it must first be shown that it is not in the power of the party to produce it. as that it is lost or mislaid, or in the possession of the opposite party. The evidence of the justice of the peace, that after diligent search, he could not find the notes, was not sufficient, because it does not appear they were ever in his custody, and the narration of what his predecessors in office told him, was mere hearsay, and therefore, incompetent testimony. Bat proof that the defendant admitted that the notes were Jost, was competent evidence of the fact, and should have been received. For this error, the judgment must be reversed, and the cause remanded.