Johnston v. . Knight , 5 N.C. 293 ( 1809 )

From Richmond. It is one of the primary rules of evidence that the best which the nature of the case admits of, and which is in the party's power or possession, shall be produced. The offer of lesser evidence whilst the greater is in the power or possession of the person offering it affords a presumption that the greater evidence, if produced, would operate against him. The testimony of the subscribing witness to a written contract is the best evidence of its execution, of the terms, conditions and consideration on which it was made. He is selected by the parties to bear evidence of their contract in case a dispute should arise. His production has been dispensed with in cases of necessity only, as where he is dead, removed beyond the process of the court, become infamous, or interested by operation of law. The necessity in the present case arises entirely from the act of the person (or at least with his concurrence) who offers the lesser evidence, which certainly cannot and should not form an exception to the general rule. We are therefore of opinion that the evidence received upon the trial was improperly received, that the execution of the bond was not legally proved, that the verdict should be set aside, and a nonsuit entered.

Cited: Overman v. Coble, 35 N.C. 5.

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