Dumas v. Powell, 14 N.C. 103, 3 Dev. 103 (1831)

June 1831 · Supreme Court of North Carolina

14 N.C. 103, 3 Dev. 103

Isham A. Dumas v. Robert Powell et al. adm’rs.

To let in secondary evidence, the best evidence of the loss of the oiv ginal document, that the nature of the case admits of, must bo produced.

Debt, tried before his Honor Judge Danieb, at. Richmond, on the last circuit. The plaintiff declared upon a lost bond, alleged to have been executed by the/ defendant’s intestate. A witness, one Mask, testified that he once had a bond in his possession, as assignee, corresponding in date and, amount, with that declared on ; that he received it from the plaintiff as genuine, and believed it to have been executed by the defendant’s in-, testate, with whose handwriting lie. was acquainted ; that while the bond was in his possession, he presented it to one of the defendants, as a claim which he held against the estate of his intestate j that thp defendant Vas also well acquainted with the handwriting of his intestate, and made no objection, but took a memorandum of the amountthat the witness afterwards, at the request of the plaintiff, returned the bond to him, and also a note executed by the plaintiff, and received instead tlie plaintiff’s own note for the amount of both. Another witness, who was present, testified that the plaintiff, on receiving the bond;, put it in bis pocket, and on their leaving Mask's house- in company, took out a paper and tore it up. On the part of the plaintiff it was contended, that from this -testimony the jury might infer, that the bond was- torn up by mistake. But his Honor being of opinion, that there was not such proof of the loss of the bond, as entitled the plaintiff to put his case to the jury, directed a nonsuit to be entered, and the plaintiff appealed.

No counsel appeared' for either party.

Ease, Judge.

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 non-production 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 Ms 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 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 be destroyed bis own note, when he took it from Mask. ,

Pee Cukiam. — Judgment- aeeíkmedí