delivered the opinion of the Court:
On whom it devolved to prove the violation or performance of the condition of the bond, depended entirely on the question, who held the affirmative in the issue ? Í»ut: in the progress of the cause it became entirely unnecessary to consider this point, for it appears that the Comptroller’s settlement with the Defendant, and receipt in full, was produced in evidence, which, if fairly obtained, was a complete bar. The only question. *28therefore, rema' mg for the consideration of the Coart is, was the Cour¡. below correct iu withholding the Ray-rojj^ from theJiiry? which pay-roll the Plaintiff alleged was the basis of the Comptroller’s receipt and settlement, and which, he said, he would shew contained forgeries and mis-statements. Mr. Secretary Hill, ssaced that the Comptioiler was absent on a visit to his family in Warren; that previous to his leaving Raleigh, lie- put his keys into the witness’s possession, with a request to attend to any business in his office, and that he thou attended the Court with the papers in this case, in the place, or on the behalf of the Comptroller ; from which, I understand that ¡¡’¡is paper, the pay-roll, was among the papers in the case. The question was as to the relevancy of the facts deposed to by Mr. Kill; that is, could the Jury rightfully infer from these facts (for the evidence is always admitted to be true when wc are testing -its relevancy) that this was the pay-roll, by which the settlement was made ? The settlement pre-supposed a pay-roll; that pay-roll was in the office of that officer appointed by Jaw to make the settlement and keep the vouchers, it was with the papers of this particular transaction; now whether this would satisfy the Jury, is not for the Court to say; if they are only part of the facts, do they throw any light on the issue ? If they are the whole, which in this case is admitted, do they warrant the Jury in drawing the conclusion that it. is the pay-roll? If the Jury would be warranted so to do, from the facts deposed to, the Court did wrong; if they would not, the Court did right. The rule that the best, evidence iu the party’s power or possession shall be produced, does not apply in this case, for that rule only applies to grades of evidence. Oral evidence shall not be received where there is written, a copy when the original can be had, the present Comptroller might, and no doubt would, be more satisfactory than Mr. Kill, not because his evidence is of a higher grade, for i'; would *29 hf, or.: i ha cacó ca.it*,, but because It is probable IicwukM depo'se to addiíiot»«l Iwcts ; to wit: that when be came i.;5 • sobeo, be found, oi* be did not find, the pay-roll thi;. file of papers; anti if the lave Comptroller was *u'\ ¡, be might be still moro satisfactory! but still the e\ idence is all of the same erado, ami tends to elucidate lite ?;»d>ject, and from which the bury might rightfully drrw the conclusion that it Is the same paper. If the ¡'%l*e '-vas. that the most full and satisfactory evidence should ho produced, it would follow that where it appealed there were others «resent, they should also be produced, or where a person from his situation had a better view of the transaction j one who had a less fa-vourable position shoo Id not be received, or where it appears that another could give, a more detailed account of the ailair, one who could not give so full a one should be esdntled, although their may ho no doubt as to his knowledge of the facts to which he deposes. I therefore think that the paper ought to have gone to the Jury, The Judgment should be reversed and a new trial, granted,.