Hart v. Yunt , 1 Watts 253 ( 1832 )

The opinion of the Court was delivered by

Kennedy, J.

The court below erred in admitting the defendant to give in evidence to the jury the written memorandum made out by George Duchman, of receipts alleged to have been given by the plaintiff to the defendant for .moneys received of him at different times in discharge of the demand or claim, for the recovery of which the plaintiff brought this action. Duchman testified that he made this memorandum out from the receipts which were then in the possession of the defendant, and produced by him, read over by him and agreed to -by the plaintiff. It is obvious that this memorandum thus made could not in any point of view be considered or be claimed to be better and more satisfactory evidence than a copy of the receipts would have been, after having been proved by the witness to be a true copy of them. Now can it even be pretended for a single moment that copies of writings, which, appear not only to have been in existence, but to have been in the possession of the very defendant himself, ought to be substituted for, and permitted by the court to be given in evidence by him to the jury instead of the originals ? This would be in direct violation of a rule that is considered universal; and than which none is better established: that the contents of a writing under such circumstances can not be proved by a copy. Stark. Ev. part 3, sec. 10, page 390.

Among other things, it is said that the foundation of this rule is a suspicion of fraud. For if it appear from the very nature of the transaction, that there is better evidence of the facts proposed to be proved, which is withheld, a presumption arises that the party has some secret and sinister motive for not producing the best and most satisfactory evidence, and is conscious that if the best were to be afforded, his object would be frustrated. Ibid.

But what tends to make the suspicion of fraud in this case still stronger is, that this memorandum of the receipts admitted in evidence is not in fact a copy of them, but falls far short of it. It is barely a brief abstract from them, showing the amount of the sum of money mentioned in each, without designating on what account or for what purpose the money was received: and I am inclined to think could not legally have been admitted as a substitute for the original if they had been lost or destroyed. It no doubt might have been used by the witness George Duchman to refresh his memory in proving the contents of the receipts, had he been called on for that purpose in case of their loss or destruction; and this is the most, as it appears to me, that could have been made of it.

There is nothing in the two remaining errors which have been assigned. The judgment of the court below is therefore reversed on the first error assigned; and a venire facias de novo awarded.

Judgment reversed, and venire facias de novo awarded.