Yoter against Sanno, 6 Watts 164

The opinion of the Court was delivered by Gibson, C. J. There are presumptions of mere fact, which are of growing importance in the application of evidence, and which temper the severity of its rules as abstractions, by adapting them more intimately to convenience and justice in practice. Standing towards the circumstances from which they spring, in the relation of cause and effect, they are founded, not in artificial connections, but in the current of human affairs; nor have they a technical force beyond their natural power of creating belief.

They are conclusions from experience, that the same consequences usually proceed from the same causes, which dispense with proof of circumstances that usually attend particular actions. Such is the presumption of guilt from the possession of goods recently stolen; of illegitimacy from recency of birth after the husband’s first access; and of many other facts inferred from the conduct of the parties, of which other examples are given in 2 Stark. Ev. (Gerhard’s ed.) 684.

Though it is usually the business of the jury to deal with these presumptions of mere fact,-they furnish a ground of adjudication by the court, when they are preliminary to evidence in chief. What, then, is the presumptive fate of a prize-ticket after it has been presented and paid, and when the lottery has been suppressed ? Undoubtedly destruction. Being of no greater value to any one connected with the office, than a bit of waste paper, there would be no motive to preserve it.

In fact, it would be the interest of the managers to destroy it, in order to prevent it from getting into hands that might put them to proof of having paid it. In this instance the office was discontinued, and the managers were either dead, or had gone from the state. To have preserved a mass of tickets, such as must have been accumulated in many years, would have been not only useless, but burthensome; and the presumption of their destruction or loss, is as violent as it would be in the case of a tattered bank note traced home, immediately before a new emission of a different stamp.

Who will say that parol evidence of a bank note even in actual circulation, might not be given on proof that it could not be followed to the hands of a particular holder ? Having no clue to it, it would be effectively a lost note to the party desirous of using it; and it would be very like a denial of justice, to preclude him from showing its contents by the best evidence in his power. Why does the law tolerate secondary evidence of a paper withheld ?

Simply, because it is all that the party can be expected to give; and the fact of inability deduced from the nature of the circumstances, is sufficient for the exigence, without regard to the paper’s existence. So far as this principle is involved, the decision in Gray v. Pentland, 2 Serg. & Rawle 23, rests upon peculiar, if not questionable grounds. It seems to have been thought, that secondary evidence of contents, may not be given when the paper is in existence, though inaccessible, except in two specific cases — when it is lost, or where it is in the hands of the opposite party.

The rule, however, is broad enough for every case which affords not a presumption that better might be had; and the authorities cited on the occasion show it to be so. But the chief justice ultimately put the cause on its true foundation. The case, he' said, was one of those in which the law is restrained by public policy from enforcing the production of papers, and consequently from doing the same thing in effect, by receiving proof of their contents. Be that as it may, there was a presumption of loss, in this case, which, while unrebutted, made ample way for evidence of contents.

Judgment reversed, and a venire de novo awarded.