42 N.J.L. 451 | N.J. | 1880
The opinion of the court was delivered by
The plaintiff sued the defendant for a malicious prosecution in causing his arrest, on a charge of larceny. To prove that the defendant instigated the proceedings beforetlie justice, the plaintiff relied upon the fact that the defendant made the complaint before the justice, on which the warrant was issued. The complaint wás in writing. On 'an allegation of the loss of the original complaint and of the warrant, sworn copies of the complaint and warrant were admitted in evidence. The rulings of the judge, on this-
The case was tried on the theory that sworn copies were' admissible only as secondary evidence, and therefore competent only on proof of loss of the originals. I will so consider the questions at present.
As a foundation for the admission of the copies in evidence, •the plaintiff proved by the justice that a complaint in writing was made before him by the defendant, and that he issued the warrant thereon, and that he gave the papers to the defendant’s counsel. The counsel of the defendant testified .that he got the papers—the complaint and warrant—from the justice, and gave them to the prosecutor of the pleas; that he saw the papers before the grand jury, and that was the last he saw of them. The prosecutor of the pleas testified that the complaint and warrant were presented to the grand jury, and that the last he saw of them, they were in the hands of the grand jury. He further testified that he had personally made search for the papers, in his office, and could •not find them. The clerk of the court was. also called as a witness, and testified that he had searched the files of his office, and could not find these papers; that he does not remember of their ever being there. The plaintiff was arrested on the 17th of December, 1877, and the complaint was heard and disposed of by the grand jury at the term of April, 1879. This suit was commenced in May following, and came on for trial at the term of February, 1880.
At the trial, objection was made to the admission of the ■sworn, copies as secondary evidence, on the ground that there was no proof of diligent search, or of the loss or destruction of the originals. On the argument, the contention of counsel was that, in order to exhibit the diligence required in the search for the originals, the plaintiff should have caused search to be made in the grand jury room, and if the papers were not found on such search, he should have called the foreman of the grand jury and the clerk of the grand jury, if not ■other members of that body.
No absolute rule has been or can be laid down, defining what search shall be considered as a search prosecuted with reasonable diligence. The degree of diligence which shall be considered necessary, in any case, will depend on the circumstances of the particular case—the character and importance of the paper—the purposes for which it is proposed to use it, and the place where a paper.of that kind may naturally be supposed to be likely to be found.
The value of a paper is a circumstance entering into the degree of diligence required. If the document be an important one, such as that the owner would have an interest in.
The character of the paper will also influence, greatly, the determination of the place where, or the person with whom the search should be made. As was said by Lord Ellenborough, in King v. Inhabitants of Morton, 4 M. & Sel. 48, “The malting search and using due diligence are terms applicable to some, known or probable place or person, in respect of which diligence may be used.” “If,” says Chancellor Green, “ the person to whom the paper belongs, or who, by law, has the custody of it, or to whom it has been entrusted by another, testifies that he has made diligent search for it> where it was likely to be found, it is sufficient evidence of its loss.” Clark v. Hornbeck, 2 C. E. Green 430. “The first inquiry” says Blackburn, J., “ is, where would the document naturally be, if it be still in existence ? for there the search should be made, and if not found then, secondary evidence will be admissible.” Reg. v. Overseers of Hinckley, 3 B. & S. 885.
If the document be a private paper, in which the party offering secondary evidence of its contents has a personal interest, and it be an important papei’, such as, in the usual course of business, would be likely to be in his possession, or in the possession of another, for his benefit—as, for instance, articles of agreement to which he is a party—pursuit of it in every direction in which the original can be traced, may reasonably be required, before secondary evidence of its contents will be received. Smith v. Axtell, Saxt. 494. If the docu
If the paper be one of a kind that, in the usual course of business, would have a proper place of deposit, search in that place is all that will be required, and, in the absence of grounds of suspicion that the original has been fraudulently withheld, will justify the admission of secondary evidence, wichout calling persons who have had access to the paper, and possibly might have the original in their possession. 1 Taylor on Evidence, § 401. In a settlement case, evidence was given that search was made in the parish chest for the indentures of apprenticeship of a pauper, and that it could not be found there. The court held that, inasmuch as it was the duty of the overseers to deposit the indenture in the parish chest, inability to find it there raised a presumption of its loss or destruction, sufficient to justify secondary evidence of its contents. Rex v. Inhabitants of Stourbridge, 8 B. & C. 96. In another settlement case, search in the office of the landlord for a lease of lands to the pauper, was declared to have been sufficient, without calling the landlord as a witness, if it had been proved that the landlord’s office was the proper place of deposit. Regina v. Saffron Hill, 1 El. & Bl. 93. It being shown that it was the custom to return canceled checks to the clerk of the parish, and to deposit them in an apartment of the parish work-house, search in that place for a canceled check, was held to be sufficient search to let in secondary evidence of the contents of the check, without serving a notice
Much more will the place for deposit be the place for the search, when the document is one of public concern, and there is, by law, a place where such instruments, in due course of law, should be deposited and be found. In case the custody of a paper is committed by law to a particular officer, as such, search in his office and among his official papers, will generally be sufficient. Proprietors v. Battles, 6 Vt. 395. It being the custom of the sheriff’s officer to deliver his warrants to the auctioneer, to be transmitted to the excise office, through the supervisor of excise, search in the sheriff’s office .and among the auctioneer’s papers, with a search at the excise office, was held sufficient, without calling the supervisor or
The cases cited are precedents illustrative of the principle-by which courts are guided in admitting secondary evidence of the contents of a written instrument. The court wilL require a reasonable assurance that evidence of a higher nature is not withheld or suppressed by the party offering secondary evidence, (Clark v. Hornbeck, 2 C. E. Green 430,) and will administer the rule that a party shall produce the best evidence he has in his power to produce, so as to guard, against frauds, surprise, and imposition. Cornett v. Williams, 20 Wall. 226.
The proof of loss being a matter preliminary to the admission of evidence in the cause, the question of its sufficiency is-for the court. If the decision of the judge, upon the testi
In the present case, the missing papers were papers in a criminal prosecution. The plaintiff had no control over-them—no power to take them into his custody, nor to determine the custody in which they should be kept, and consequently had no responsibility cast upon him for their safe keeping. It was the duty of the magistrate to transmit these papers to the clerk of the Court of Oyer and Terminer, or deliver them to the prosecutor of the pleas of the county. The papers were delivered to the public prosecutor, and were-laid before the grand jury. The plaintiff's attorney saw them before the grand jury, but he had no control over them while they were there. The proper place for their deposit was among the files of the court, there to be kept as public records and when the criminal prosecution was ended, it was the duty of the prosecutor to have them placed among the records of the court. ’
In preparing his case for trial, the plaintiff's attorney had a right to expect that these public records were in their proper-depository. He was under no obligation to anticipate that they had, by the oversight or neglect of others, become mislaid or lost. Being unable to obtain them from the files of the court, he caused search to be made in the clerk's office and among the papers of the prosecutor, the only places where papers of this character, if not lost or mislaid, would be likely to be found ; and he was not chargeable with a duty to search-for them elsewhere. The plaintiff could have no interest in. withholding or suppressing the original papers, and his search, for them w'as all that could reasonably be required.
The deposition was regularly taken, pursuant to the twentyjfifth section of the act concerning evidence. Rev., p. 382. That section provides for the taking of the deposition of a witness who is in this state, but is ancient or very infirm, or is sick, or is about to go out of the state, before certain officers—among whom a judge of the Court of Common Pleas is mentioned—on notice to the adverse party, immediately, or at such short day as the ease, in the opinion of such officer, may require. Ogden v. Robertson, 3 Green 124, which held that a commission for the examination of witnesses must be executed and returned before the trial of the cause, was decided under the act of February 18th, 1799, (Rev. L., p. 437,) which provided for the taking of the depositions of witnesses, domestic and foreign, by commission, on interrogatories and cross-interrogatories. The twenty-fifth section of the present act was originally introduced in the Revision of 1846. The ■section as it stood in the revision of 1846, provided for the ■examination of a witness who is in this state, and is about to go out of the state, or is ancient, infirm, or sick, before certain officers, in lieu of his examination by commission. R. S., p. 961, § 6. In the Revision of 1874, the act was further amended, and, at present, the deposition of a domestic witness can only be taken under the twenty-fifth section of the act, .and the taking of depositions by commission, on interrogatories and cross-interrogatories, is only permissible when the witness resides out of the state. Rev., p. 382, § 25; p. 383, 29. In the present act, there is no requirement, expressly
There is no error apparent on the record, and the judgment, should be affirmed.