Thе Court of Civil Appeals have certified to this court the following explanatory statement and questions: “S. Lapowski & Bro., a mercantile firm engaged in business in Gaines-ville and other places in Texas, made a deed of trust for the benefit оf preferred creditors to Henry Sayles, accompanied with delivery of the goods covered by the deed of trust, including goods which had been sold said firm on a credit by the Bradley & Metcalf Co.
“This suit was brought by the last named company against S. Lapowski & Bro. and Henry Sayles, to recover the goods so sold S. Lapowski & *407 Bro., upon the ground that S. Lapowski & Bro. had obtained them through false and fraudulent representations made to the Bradstreet agency or company. In order to sustain this allegation, appellee took the deposition of W. C. Griffin, a resident of Dallas County and the superintendent for the Bradstreet Company at Dallas, Texas, who attached a copy of the statement made by S. Lapowski & Bro. to the Bradstreet Company upоn the faith of which the goods in question had been sold. This copy of the statement was read in evidence over the оbjection that the original was the best evidence. To this ruling appellant assigns error.
“It does not distinctly appeаr from the record what effort appellee made to obtain the original. It is perhaps to be inferred from thе statement of facts that in propounding the interrogatories to Griffin appellee requested him to attach thе original statement,.since his deposition contains the following: ‘The original statements made by this firm (S. Lapowski & Bro.) to Bradstrеet’s are in my office. They comprise part of the permanent records of the same, and I am responsible to the company for their preservation. I can not attach same to these depositions, for the reаson that I am not permitted to let them get out of my possession so long, as I am responsible for the records of this оffice/
“This ruling, if erroneous, necessitates, we think, a reversal of the judgment, and we deem it advisable to certify to your hоnors for decision the question involved therein; that is to say, whether the appellee, upon the refusal of the suрerintendent of the Bradstreet agency to attach the original letter to his deposition, for the reasons given by him аnd quoted above, made a sufficient showing of its inability to produce the original letter to warrant the introduction of sеcondary evidence, to wit, a copy thereof?”
The letter was the best evidence of its contents. Appеllee therefore should not have been allowed to introduce a copy without showing that he was unable to produсe the original. Such inability might have been shown to be absolute, e. g., where the paper had been destroyed, or practical, е. g., where it had been lost and had not been found after diligent search, or where it had been traced to the possession of a person beyond the jurisdiction of the court and such person had refused to surrender it.
The paper being in existence, there could be no absolute inability to produce it. Did appellee show that it was practically unable to do so? We think so, bеcause it showed that it was in the possession of a person who Avas beyond the jurisdiction of the court trying the case, and the officer taking the deposition had no power to compel him to deliver up the original, and he refusеd upon request to attach same to his depositions.
If the letter had been in another State it is well settled that it would hаve been beyond the jurisdiction
or power
of the trial court to compel its production, because its process of subрoena duces tecum can in no case run beyond its own State, and we think it equally so where, as here, the letter was shown to have been in another county, for in a civil case a subpoena is not authorized by our statute to be issued to any county
*408
other than that in which the trial court sits, except perhaps in the case provided for in Revised Stаtutes, articles 2314 (2258). Our Revised Statutes, articles 2282-2284, provide for bringing the witness before the officer holding the commission to takе his deposition and compelling him to “answer” the “interrogatories,” and reducing the “answers” to writing and signing and swearing to same, but there is no attempt to confer upon such officer the delicate and dangerous power of comрelling the witness to deliver or attach his private papers. A more comprehensive statute than ours has been held not to confer such power. Ex Parte Mallinkrodt,
The officers taking depositions are not supposed to have any such knowledge or power, and therefore the Legislature has not seen fit to confer upon them the power to compel the production of papers. If it were thought neсessary to the administration of justice to procure such papers it would seem wiser to permit the trial court upon a proper showing to issue its subpoena duces tecum to any county in the State.
We think the fact that witness refused on the grounds stated to attach the paper fairly shows that he would not deliver it to appellee. From what has been said we think it follows that appellee showed that it was practically unable to procure the original, and therefore the question certified will be answered that the showing was sufficient to authorize the introduction of secondary evidence.