Parks against Dunkle, 3 Watts & Serg. 291

The opinion of the Court was delivered by Sergeant, J. The material points to be considered by us in this case arise upon bills of exception to evidence. The first and fourth exceptions are to the admission of the deposition of John Wauner, instead of requiring his attendance in person.

In a doubtful case, like that before us, where the ground laid is the sickness of the witness, and where it is testified that in the opinion of a person who had the means of knowing his situation, he could not come to court without endangering his life, it would be, in our opinion, more safe and prudent to leave it to the sound discretion of the court below to say whether the deposition might not be received. No fixed rule can be laid down by which a court can regulate itself on these occasions. Their determination must often depend on the particular circumstances of the case.

It is certainly exceedingly desirable that the personal attendance of witnesses should be had in court, especially in cases involving character and credibility; but, on the other hand, a rigid enforcement of it in cases of disease or debility, might be followed by very unpleasant consequences to a suffering person, as well as to the feelings of others. While, therefore, we think there may be cases in which this court would reverse on this ground, yet we do not think the present is one in which we can clearly see that the court below ought to have rejected the deposition. Second and third.

There seems no reason for objecting to the evidence of the releases of 1830 and 1840. The last seems to have been the ground of the issue directed by the court: and the release of 1830 has a connection with it. The fifth exception is to the reception of evidence to prove the value of the improvements put upon the property by the defendant. Had there been no previous offer of evidence on this subject by the plaintiff, this evidence would, at the time it was given, have been irrelevant.

The issue trying was whether Hannah Parks was entitled to have an inquest on the real estate of Jacob Rothermel, her first husband. This issue was directed in consequence of the petition of Hannah Parks to the Orphans’ Court to that effect. Whether the land had been impi’oved by Parks since the decease of Jacob Rothermel or not, was entirely immaterial to this issue, as the case stood. But it will be observed that the plaintiff had introduced this subject previously by asking Wauner in his cross-examination, whether the land was not worth $100 an acre, and upwards ?

And also, whether Dunkle cut any timber from the premises in question. It would seem that the view of the plaintiff was to infer imposition and inadequacy of consideration in the amount of the sums paid, or agreed to be paid by Dunkle to Mrs Parks, when he obtained the release, by showing the value of the land and the profits Dunkle had previously got from it. To rebut this, the defendant had a right to show that the value resulted from improvements made by himself after he had gone into possession. When the question of fraud and imposition was fairly opened, the evidence became pertinent and material.

We think there was no error in this. The sixth exception is to the court’s permitting Messersmith to prove the contents of a letter which he wrote to Dunkle, without any proof by the defendant of its loss, or accounting for its non-production. Regularly the party before going into parol evidence of the contents of an instrument, ought to prove its loss or destruction ; and if positive proof of the destruction cannot be had, it must be shown that a bond fide and diligent search has been made for it in vain where it was most likely to be found. 2 Stark Ev. 343.

The order of giving this evidence may not always be rigidly enforced by the court, though it seems most advisable in general to pursue it, and to require the foundation for secondary evidence to be first laid before it is received. But it is indispensable that the legal proof required to warrant secondary evidence should be satisfactorily made out either before or after. Here all that the defendant produced afterwards was the oath of Dunkle that he received the letter spoken of by Messersmith, and it was lost. This, we think, was not sufficient.

The party relying on secondary evidence must go further, and show what became of the original, and that due dilgence was used to find it, or at all events ought to furnish reason for believing that the document is irretrievably lost, and not merely mislaid, and still within the power of the party to recover by an exertion of proper diligence. A thing is often, in common parlance, lost, and yet found on a search. More especially is this incumbent on the party when he has himself had the document in his custody, and is called on to show that it cannot be produced.

We think there was error in receiving this evidence. The alleged errors in the charge are not sustained. Judgment reversed, and venire facias de novo awarded.