11 Tex. 234 | Tex. | 1853
The statute (Dig. Art. 745) provides that “ Whenever any party to a suit shall file among the papers “ of the suit, an affidavit stating that any instrument of writ- “ ing, recorded as aforesaid, has been lost, or that he cannot “ procure the original, a certified copy of the record of any “ such instrument shall be admitted in like manner as the ori- “ ginal could be.”
The statute is in derogation of the Common Law rules of evidence, and should be strictly complied with, by the party seeking its aid. Here, there was no attempt at compliance, by filing the affidavit of the loss of the original, among the papers of the cause, before offering the copy in evidence, as the statute manifestly requires. It was, however, perhaps within the discretion of the Court, to permit the affidavit to be offered without having been previously filed, if the Court was satisfied that the omission was an accidental mistake or oversight, and that the introduction of the evidence would not operate a surprise upon the opposite party. But where the Court, in the exerqise of its discretion, has refused to admit the evidence, under such circumstances, we should hesitate much, to disturb its judgment.
But the affidavit, not only was not filed as the statute requires ; but in its substance, it does not conform to the statute.
Judgment affirmed.