Hurt v. Davis ( 1803 )

By the court.

An instrument of writing under seal, was the substratum of this action ; and it does not appear that it was dis-annulled, or cancelled, by any conclusive and sufficient act of the parties, but was in force at the time of the commencement of the action. The action ought therefore to have been founded upon it; and the plaintiff cannot maintain assumpsit. But even admitting that the plaintiff had a cause of action independent of the deed, yet if it were necessary to the support of his action, to give in evideuce the contents of the deed, or of any of the stipulations con. táined therein, and the deed itself could, be had, it should have been required, as the best evidence the nature of the case admitted of. See 1 Dallas, 208. 3 Esp. Rep. 213.

Motion granted.

Note. The first principle of evidence is, that no evidence shall he received, hut that which is in itself the best that cau be procured, respecting the subject to which it is applied. See Powell on Powers, in the preface, an exc»l2ent illustration of the first rule of evidence.