Haydon v. Moore , 9 Miss. 605 ( 1844 )

Mr. Justice Clayton

delivered the opinion of the court.

It is only necessary to notice a single point in this cause. Upon the trial, the plaintiff, Moore, introduced a copy of a recorded mortgage, and proved “ that the original was on file in the chancery court at Jackson, as an exhibit in a cause therein pending,” and offered to read it to the jury. The defendant objected, but the court permitted it to be read; to this a bill of exceptions rvas filed, and we are called on to review the correctness of this order.

The common law rule is, as is well known, that the best evidence in the power of the party must be produced. The original is deemed better than a copy, and its production, if practicable, is therefore required. This rule has been occasionally modified, and relaxed to meet particular exigencies occurring in practice. 2 Phil. Ev. by Cowen & Hill, 540. Our legislation upon this point, however, has been so ample, as to render resort to the common law in a great degree immaterial. The first 'statute on this subject directs, “that if an original deed, conveyance or other instrument, which shall have been recorded according to law, be lost or mislaid, or destroyed by time or accident, and not in the power of the party to produce,” then a certified transcript shall be received in evidence. H. & H. 348. A subsequent law enacted that “ copies of all recorded deeds, &c., when certified by the clerk in whose office the record is kept, shall be received in evidence, in any court in the State, without accounting for the absence of the original.” H. & H. 610. This law was repealed in 1840, and so the point rests upon the statute first cited. Has the plaintiff brought himself within the provisions of that statute, so as to justify the reading of the copy ? We think not. The original was neither lost nor mislaid, nor destroyed, nor was it out of the power of the party to produce it, by the exercise of a reasonable diligence. By the fourth section of the sixteenth rule of the chancery court, he might have withdrawn the original by application to the chancellor. The suit had been pending from May, 1840, till November, 1841. He must have known that the deed was essential to his recovery, and it is certainly,not a rigorous construction of the law to say, that by reasonable diligence, he might, within that time, have had it in his power to produce the original.

We think, therefore, that the copy was improperly permitted to go in evidence to the jury, and for this reason that the judgment should be reversed.