Opinion
June Term, 1822.
The rule that the best evidence in the power or possession of a party shall be produced applies only to grades of evidence, e. g., oral evidence shall not be received when there is written, a copy when the original may be had. But where the evidence is all of the same grade, as the testimony of living witnesses, one is not to be excluded because another had a better opportunity of knowing the fact deposed to, but the testimony should be left to a jury to be weighed by them.
DEBT brought upon the bond given by the defendant as assistant paymaster. The condition of the bond was as follows: "If the said John Roberts shall well and truly execute and faithfully discharge, according to law and to instructions received by him from proper authority, his duties as assistant paymaster-general aforesaid, and he, his heirs, executors, or administrators, shall regularly account for all money received by him from time to time as assistant paymaster-general with such person or (27) persons as shall be duly authorized and qualified on the part of the State for that purpose, and moreover pay such balance as on a final settlement of the said accounts shall be found justly due from him to the said State, then this obligation shall be null and void." etc. The defendant craved over and pleaded "conditions performed and not broken." The Attorney-General offered in evidence the account of the defendant settled with the Comptroller, and also a paper which he alleged was the pay roll on which the account was founded. The Comptroller with whom the settlement had been made was dead, and this latter paper was in the possession of the Secretary of State, who testified in court that the present Comptroller was absent, and that previous to his departure he had delivered the keys of his office to the witness, with a request to him that he would attend to any applications which might be made in his office during his absence. The witness also stated that he then attended the court on behalf of the Comptroller or as his agent with the papers of the office relative to this transaction. The Comptroller was not summoned to attend the court. The court rejected the writing purporting to be a pay roll without further proof of identity, and the jury returned a verdict for the defendant. A motion for a new trial was refused, judgment rendered, and the Attorney-General appealed.
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.