It is a rule of evidence that the best which the nature of the case will admit of, must be produced. When that cannot be produced, and the nonproduction of it is accounted for, the next best evidence in the party's power is required. It is that rule of evidence which required the production of the bond upon the trial.
In order to dispense with the production of it, it was incumbent on the plaintiff to give all the evidence reasonably in his power to prove the loss of it. It appears to me that he is chargeable with two omissions: In the first place, in not having gone to the house of Mask, where he tore up the paper the day before, as soon as he discovered the loss of the bond. He might perhaps have discovered some remnants of the paper torn up. In the second place, he might have produced his own *Page 96 note taken up from Mask. It would then appear that he had not torn up that paper, and tend to a belief that he had destroyed the lost bond, through mistake, instead of his own. It does not now appear but that he destroyed his own note when he took it from Mask.
PER CURIAM. Judgment affirmed.
Cited: Cowles v. Hardin,
(105)