Peck v. Clark , 18 Tex. 239 ( 1857 )

Wheeler, J.

The plaintiff, having taken a non-suit, moved to set it aside on the ground of surprise, by the ruling of the Court, improperly excluding his evidence. The question is, whether the Court ruled correctly, in holding that the registry is inadmissible as proof of the original deed or conveyance, of which it is a copy, without accounting for the non-production of the original, or complying with the Statute (Hart. Dig. Art. 745) respecting the making of proof by the record. That the ruling of the Court was correct is manifest. The book of registry contains but a copy of the original, and, of course, is but secondary evidence, and as such, is inadmissible, without accounting for the non-production of the original, or primary evidence; unless, where the Statute makes the recorded copy supply the place of primary evidence ; and then to render the copy admissible, the Statute must be complied with. The non-production of the original was not accounted for, nor was the direction and requirement of the Statute observed. Hence the evidence proposed was clearly inadmissible. (Styles v. Gray, 10 Tex. R. 503.)

Where it is proposed to prove the contents of a record, the record books, or books of original entries, is the best, or primary evidence; and if produced, are always admissible; though copies are, in general, admissible, on account of the inconvenience of producing in Court the originals; and, on general principles, there is the same necessity to account for the non-production of the latter, where the former are proposed to make proof of them, as in other cases of the proof of original writings by copies. They are not admissible as a substitute for the originals, unless made so by Statute.

The exclusion of the proposed evidence was no ground for setting aside the non-suit; and the Court did not err in its judgment; which is aErmed.

Judgment aErmed.