Rollins v. Bartlett , 21 Me. 565 ( 1842 )

The opinion of the Court was drawn up by

Whitman C. J.

— The defendant in the Court below, excepted to the admission of a copy from the Registry, of a deed made by the plaintiff to the witness, produced by the plaintiff, for the purpose of establishing, with more certainty, than the witness was able to do it, the precise time when the notes in question were negotiated to the plaintiff. The original of the deed must be presumed to have been in the possession of the witness. The defendant was no party to it, nor was there any question of title to land depending in connexion with it. It was, besides, evidence of the plaintiff’s own manufacture, without the privity of the defendant. Neither the-original nor the copy was properly admissible in evidence against him. The original might have been used by the witness to refresh his recollection, if it had been present; and this was the only use that could have been made of it, legitb mately, against the defendant.

But the plaintiff now ■ contends that, if the copy was improperly admitted, it was immaterial. But he did not so consider it at the trial, otherwise he would not have offered it. The fact which it tended to prove, and for the purpose of proving which, it was offered, he now contends, was sufficiently established without it. But this was a question for the jury, The evidence to be relied upon was oral, depending upon the credibility of the witness; and the Court cannot undertake to know, that the jury would, but for this evidence arising from an inspection of the copy of the deed, have considered the fact as established.

The exceptions arc therefore sustained-, and a new trial granted.