John R. Livingston, against William Rogers

John R. Livingston, against William Rogers. yie contents of a tomej^may be adduced, if tlie peison 0 whom it was given prove it lost 'AVe been IN an action on a stock contract, the plaintiff, to establish a tender of the stock, called on Gulian Mc Evers, who swore that he, under the authority of a letter of attorney, made to him by the plaintiff, with whose hand-writing he was acquainted, and attested by John Wilkes, a notary public, did, after due notice to the defendant, attend to transfer the ' ' stock, but the defendant never appeared. That after this, the letter of attorney was, by the witness, deposited among some papers, and had been since lost. John Wilkes deposed, that he never subscribed any letter of attorney as a witness, without seeing it first executed. The plaintiff then . , . , r , , , . ottered to go into parol evidence or the contents of the letter attorney, but this being over-ruled by the judge who tried the cause, a bill of exceptions was tendered, on which the case came before the court. The defendant, in support of the judgment below, relied on the following points: 1st, That the letter of attorney, being a material link in the evidence, ought to have been shown to the court and jury, that they might determine on its certainty; and where there is a subscribing witness to an instrument, it must be established by him, if within the jurisdiction of the court, such being the agreement of the parties. '2d, That the production of deeds can be dispensed with, only where they appear to be in possession of the opposite party, who has been duly served with a notice for their production; or where they have been lost or destroyed, not by the laches of the party to be benefited by them, but by fire or other accidents. 3d, That in the whole of this case, the conduct of the agent or attorney of the plaintiff, must be considered as that of the plaintiff himself, who cannot allege his own, or his agent’s carelessness, as a reason for the non-production of papers he was bound to-preserve. [MAJORITY — Per curiam.] Per curiam. The" question ‘upon the bill of exceptions interposed in this cause, is, xvhether it be competent for the plaintiff to give petrol evidence of the contents of the letter of attorney to Me Evers, under the circumstances defeated in the bill of exceptions, or must the instrument itself be produced? The ancient rule of the common law was highly rigid in this respect. It dispensed with the production of instruments in a few select cases, and then only for peculiar and specific causes. But experience under that rule, has, in the progressive improvements of English jurisprudence, resulted in a relaxation of the law on the subject. The non-production of instruments is nowr excused, for reasons more general, and less specific, upon grounds more broad and liberal than were formerly admitted. In 3 D. & E. (151) a declaration on a deed was sustained, and the proferí dispensed -with, upon the geneiral allegation of a loss by time and accident. In Beekford v. Jackson (Esp. Rep. 337) the Plaintiff counted on a deed lost or mislaid; upon which issue was taken, and the same recognized, as warranted in law, by Lord Kenyon, who presided at the trial. Other cases are to be found in the English reports, of similar import, sanctioning the same principle. Upon the authority of those cases, and the reason of the thing, we are of opinion, that parol evidence of the contents of the letter of attorney to Mr. Me Evers, ought to have been received, and that therefore error has intervened in this respect. Upon the admission of such testimony, should the trial disclose evidence, or reasonable grounds of suspicion, of a suppression of the instrument, of mala tides in the plaintiff, or should the evidence of its existence and legal efficacy not be clear and satisfactory, it will become the duty of the court to direct and charge the jury for the defendant; a venire facias de novo, must therefore be awarded. Read v.Brookman.