
    Frederick Hanson vs. John K. Carlton.
    A party who has testified, in his own behalf, that he has taken a deposition which is not produced at the trial, cannot be allowed to state, as the reason why it is not produced, that the deponent refused to answer a part of the questions put by him, on the ground that his answers would tend to criminate him, but answered the questions put by the other party.
    Contract brought to recover the price of goods sold. The defence was payment to the plaintiff’s agent, by giving a note.
    At the trial in the superior court, before Brigham, J., the defendant introduced evidence tending to show that when the goods were ordered it was agreed that a note should be taken in payment, and that a note was given accordingly to the plaintiff’s agent, Hasty, who sold it. The plaintiff testified in his own behalf, without objection, that he had partly taken the deposition of the agent, or attempted to do so, at the jail where the latter was imprisoned on a criminal charge, and he was asked why the deposition was not produced. To this question the defendant objected, but the objection was overruled, and the plaintiff stated that the deponent refused to answer a part of the questions put by him, on the ground that his answers would tend to criminate him, but answered the questions put by the defendant.
    The judge instructed the jury that the mere fact that the plaintiff did not produce and use at the trial the deposition of Hasty was immaterial, inasmuch as the deposition might also have been taken by the defendant.
    Certain other questions were raised at the trial, which were waived at the argument.
    The jury returned a verdict for the plaintiff, and the defendant iilleged exceptions.
    
      A. Cottrell, for the defendant.
    
      J. F. Pickering, for the plaintiff.
   Metcalf, J.

All the exceptions that were taken at the trial of this case have been waived, except those concerning the deposition of Hasty.

The instruction to the jury, that the mere fact that the plaintiff did not produce and use the deposition of Hasty was immaterial, was rightly given.

But the court are of opinion that the plaintiff ought not to have been permitted to testify that the reason why he did not produce that deposition was, that the deponent refused to answer a part of the questions put to him by the plaintiff, on the ground that his answers thereto would tend to criminate the deponent. As the plaintiff did not introduce the deposition, he could not legally testify to its contents, or any part thereof. The exception to the admission of his testimony must therefore be sustained.  