¶1Pollock & Co. sued out an attachment against McRae Bros, which was levied by Haynes (the sheriff) upon a stock of goods claimed by F. D. McRae. The present action was brought by F. D. McRae against the sheriff and others to recover damages for an unlawful seizure of the goods. On the trial, the plaintiff, F. D. McRae, testified as to the purchase of the goods from McRae Bros., the circumstances of the transaction, and the consideration paid by him for the goods. The two members of the firm of McRae Bros, were present in court as witnesses during the trial, but -were not examined. In the argument of the facts before the jury the-counsel for the defendant insisted, that the failure of the plaintiff to introduce and examine the McRae Bros, was a circumstance of itself, which the jury was entitled to consider as unfavorable to the plaintiff, &c. After the argument was closed, the court, at the request of the plaintiff, charged the jury, that “The fact of J. S. McRae and P. C. McRae not being introduced as witnesses *320can not be considered against the plaintiff in this case.” The giving of this charge is the only error assigned.
¶2There is a rule of evidence to the effect, that a party who has it in his - power to produce the best evidence, which he withholds, or leaves unexplained a material question of fact, by an intentional withholding of explanatory evidence, such conduct may give rise to unfavorable inferences against him; but this rule of evidence does not apply when the evidence withheld is of no higher degree than that introduced, is not explanatory of any fact left in uncertainty, but is purely cumulative. So far as is disclosed by the record, the testimony of the witnesses not examined would have been merely cumulative. They were present in court, and subject to the call of either party.
¶3The question is not distinguishable in principle from that decided in Pollak v. Harmon, 94 Ala. 420, 11 So. Rep. 156; Bates v. Morris, ante p. 282.
¶4Affirmed.