Governor v. . Roberts , 9 N.C. 26 ( 1822 )

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? But 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, therefore, remaining for the consideration of the Court is, Was the court below correct in withholding the (28) pay roll from the jury? which pay roll the plaintiff alleged was the basis of the Comptroller's receipt and settlement, and which, he said, he would show contained forgeries and misstatements, Mr. Secretary Hill stated that the Comptroller was absent on a visit to his family in Warren; that previous to his leaving Raleigh he put his keys into the witness's possession, with a request to attend to any business in his office, and that he then attended the court with the papers in this case, in the place or on the behalf of the Comptroller; from which I understand that this 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. Hill; that is, could the jury rightfully infer from these facts (for the evidence is always admitted to be true when we are testing its relevancy) that this was the pay roll by which the settlement was made? The settlement presupposed a pay roll; that pay roll was in the office of that officer appointed by law 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 in 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. Hill, not because his evidence is of a higher grade, for it would be oral in each case, but because it is probable he would depose to (29) additional facts, to wit, that when he came into office he found, or he did not find, the pay roll among this file of papers; and if the late Comptroller was alive, he might be still more satisfactory; but still the evidence is all of the same grade, and tends to elucidate the subject, and from which the jury might rightfully draw the conclusion that it is the same paper. If the rule was that the most full and satisfactory evidence should be produced, it would follow that where it appeared there were others present they should also be produced, or where a person from his situation had a better view of the transaction, one who had a less favorable position should not be received, or where it appears that another could give a more detailed account of the affair, one who could not give so full a one should be excluded, although there may be 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.

PER CURIAM. New trial

Cited: S. v. Smith, 33 N.C. 35.