Evans v. Bolling

8 Port. 546 | Ala. | 1839

ORMOND, J.

— The loss of an instrument of writing, proposed to be offered in evidence, being satisfactorily established, (as appears to have been done in this case,) the law permits secondary evidence to be given of its contents. The evidence thus substituted from necessity, for the original itself, must always be of a grade inferior to the original; and will fluctuate, as it is more or less certain, between the highest degree of probability, and mere doubt or suspicion. But' certainly the proof of the contents of a lost instrument, by a sworn copy, must be the most unexceptionable mode of proving the contents of a lost instrument. It is indeed proof of the same grade, and would be entitled -to the same credence as the original, if it were certain that the copy was true. In this case, the court seem to have considered, that the copy could not be read in evidence, because the clerk who made it, could not prove the execution of the original bond. But that circumstance merely imposed on the plaintiffs in error, the necessity of showing that the bond thus copied was the original; which was done by the evidence of the subscribing witness. If these witnesses are believed, the contents of the lost bond are satisfactorily shewn; and the court erred in rejecting the testimony.

But the court did not err, in refusing to permit the witness to refresh his memory, as to-the contents of the lost bond, by reference to the copy made by the clerk.

The question commonly arises, in cases where a witness has made a memorandum of some.transaction, or event about which he is called to testify : the memorandum is not evidence, but he may look at it to refresh his memory; and must then swear, not from the fact of his having written it down at the time, — but to the facts themselves. Now, in this case, the genuineness of the copy was not acknowledged ; it could not, therefore, be referred to for any purpose as evidence.

It is contended by the counsel for the defendant in error, that the materiality of the iost bond does not sufficiently appear, to authorise this court to reverse for the rejection of the testimony. It is true, that when a party cotnplains-in this court of an error, he must show that he is prejudiced by it; and we think that sufficiently appears on this record. The defence set up was, that there was no v onsideration for toe bond sued on. To establish this, they offered to prove that the consideration of that bond, was another bond, made by the plaintiff below to the defendants, for the sale of land and other property. The first step in the defence, was to establish the execution and contents of the bond; and in attempting this, the defence was arrested by the court. It would have been idle, and indeed quite irregular, to have offered further proof, the preliminary proof not being allowed to be made, upon which the other testimony was to depend.

The judgment of the court below is reversed, and the cause remanded, for further proceedings.