*259The opinion of the Court was by
Shepley J.The objection to a part of the deposition of Comfort Chase is not insisted upon, inasmuch as it did not relate to the point of the cause, on which it must have been decided. If the legal cause for taking the deposition of Charles R. Logan no longer existed, the Statute, c. 85, § 5, requires the proof to exclude it to come from the adverse party.
Notice was given to the defendant to produce letters received from the plaintiff, and none were produced. Evidence was introduced to prove, that two or thee letters were written by the plaintiff, and that one or more of them was received by the defendant; and a witness stated part of the contents of the one which he delivered. Other letters were afterward written by the plaintiff, and sent to the defendant, and a witness stated part of the contents of them, but it did not appear that they were received. Whether they were received, was necessarily a fact before the jury, taking into consideration all the circumstances. If they believed, that these letters were in fact received, the contents, so far as proved, were a proper subject for commentary in argument, and for consideiation by the jury; otherwise, not. When the jury may find from the evidence, however improbable it may be that they will do so, the state of facts to be such as is contended for, the Court cannot restrain counsel, whthe arguing upon such a possible result. It may be proper for the Court, and it will be in the power of the opposing counsel, to call the attention of the jury to the amount of evidence upon which such arguments are built, that they may not be misled by them.
If the evidence had shown, that the letters were not received, the commentaries of counsel would have been improper.
Exceptions overruled.