Administrators of John May vs. Rebecca May, 1 Port. 229

By Mr. Justice .Saffold. On the settlement of the estate of John May, deceased, in the Orphans’ Court of Greene county, it was ordered that an ascertained sum of money should be paid by the administrators to Rebecca May, as the full amount of her distributive ■ ( share of said estate. At a subsequent term'of the said court, it was also ordered, that a scire facias issue, at the instance of the said distributee, against the administrators, to show cause why she should not have execution against them for said share, which issued accordingly.

Issue having been taken on a plea of payment and satisfaction, exceptions were taken to the opinion of the court on a question of evidence, which is the only point material to this decision. The point may be briefly stated thus — the administrators had ’made proofs, tending to show that the distributive share claimed by the scire facias had been paid; that the payment had been effected in part, under a power of attorney forwarded to South .Carolina,, where Rebecca May resided — the evidence containing expressions implying that the power was to herself. .

This proof consisted of facts embraced in an affidavit, offered by one of the administrators, on a motion for a continuance.

To avoid delay, the plaintiff b^low agreed to admit, that the absent witnesses would swear to. the facts of the affidavit, and proceeded to trial as though they had done so; but there was no consent on the part of the administrators to waive any objection On their part., The plaintiff below offered to prove by a witness present, that the power of attorney referred to in the evidence against her, was not made to herself, as supposed, but to one Theodore Starke — the object being to rebut -the presumption of payment having been received under it.

This evidence having been objected to by the administrators, was admitted by the court. In admitting which, it is contended, the court erred — there being no foun-dalion laid for the introduction of secondary evidence. The rules are too well established to admit of contest, that the best evidence must be given which the nature of the case admits of, and which is in the power of the party to procure; and that parol evidence is of inferior grade to deeds and other instruments in writing.

The-prineipls is equally established, that if the instrument be in the hands of the adverse party, he must have notice to produce it, as a necessary foundation, to secondary evidence of its, contents.

If it be in the hands of an indifferent person within the jurisdiction of the court, he can be required by snhytzna duces tecum, to produce it; if without the jurisdiction, it is presumed to be within the power of the party to procure it; or if not the original, a proved copy, by means of depositions or otherwise — and whether or not, the party wishing the benefit of it, must show that ho has used reasonable exertions to obtain the highest evidence. This evidence was intended to prove part of the contents of a written instrument — even a deed.

It was not brought within any of the exceptions to the general rule, denying the competency of parol evidence for this purpose; and we are of opinion, the court erred in admitting it — for which the judgment must be reversed, and the cause remanded. 1Stark. 354 •