Glenn v. Rogers

Tuck, J., delivered the opinion of this court. We are of opinion that the defendant did not lay a proper foundation for the introduction of parol proof of the contents of the letter mentioned in. the first bill of exceptions. Before secondary evidence can be received the.court should be satisfied that a reasonable opportunity has been afforded the opposite party to produce the original. The notice was served when the jury was about being drawn, and when the plaintiff could not have complied, in all probability, unless the paper was in court, which does not appear to have been the fact.

Whether, if the paper had been in court, the notice would have been sufficient in point of time, we need not determine. “As to the time and place of the service, no precise rule can be laid down,- except that it must be such as to enable the party, under the known circumstances of the case, to comply with the call.”' 1 Greenl. Ev., sec. 562. 8 Gill and Johns., 208, Divers vs. Fulton. We also think, that the evidence offered of the loss of the letter, was insufficient. The law requires a bona fide and diligent search for the paper itself, in the place where it is most likely to be found. 1 Greenl.

Ev., sec. 558. 3 Cowen's Philip’s Ev., 1231. 3 Halsted, 275, Fox vs. Lambson. The degree of diligence will depend on the character and value of the instrument. But it must appear that the party relying upon the secondary proof has, in good faith, exhausted, in a reasonable degree, all- the sources of information and means of discovery ³²¹ which the nature of the case would suggest, and which were accessible to him. We cannot say that this has been done in the present case.

If the defendant had served timely notice on the plaintiff to produce the letter, the objection would have been obviated. Having omitted this, he relied on the evidence of the plaintiff, who consented to be sworn for this purpose, the substance of whose statement is, that he never looked for this' particular paper among those of his intestate, though he had made a general examination among them for such as were of value or importance, that he had found no such letter, and that it might possibly then be among them.If this paper were necessary to maintain the plaintiff’s action it is impossible to suppose that such an examination would let in parol proof of its contents. Why should it be deemed sufficient when offered by the defendant to defeat the claim? This case is not distinguishable in principle from State vs. Wayman, 2 G. and Johns., 283, and Mulliken vs. Boyce, 1 Gill, 60 , in the former of which the proof of loss was said to be inconclusive and unsatisfactory, and left the mind in doubt whether by a further search the record books sought for might not have been found.

It is said, however, that the evidence of the witness was admissible, although the paper was not shown to be lost, because it was