Francis W. Dana versus Charles Kemble and Trustee, 19 Pick. 112

Shaw C. J. In the present case, the Court have not thought any of the exceptions to the verdict for the plaintiff to be of sufficient weight to be the subject of any particular remark, except those in relation to the admission of the copies of the letters of the 16th and 17th of May.

Whether secondary evidence shall be admitted, where proof is offered to show an original document in the hands of the adverse party, and which he does not produce on notice, is, in the first instance a question for the Court, to determine whether the evidence shall go to the jury ; but when admitted, the jury are ultimately to pass upon its credit. In this case we are satisfied, that there was evidence amply sufficient, of original letters having been delivered, to let in secondary evidence.

The evidence, that a letter left at the Tremont house and addressed to Kemble actually reached him, is of the same nature as a similar presumption arising from putting a letter so addressed into the post office, and may even be considered as considerably stronger, inasmuch as there would be less probability of a failure. Supposing, then, satisfactory evidence of the delivery of the original letters, the more difficult question is, whether these papers were properly submitted to the jury as copies. As to the sufficiency of the secondary evidence, the rule is w'ell expressed in the case of the Life & Fire Ins.

Co. v. Mechanics’ Fire Ins. Co. 7 Wendell, 31. The rule is this; the party may, in such case, give secondary or paroi proof of the contents of such books and papers, if they are shown or ad-mined to be in the possession of the opposite par.y; and if such secondary evidence is imperfect, vague and uncertain as to dates, sums, boundaries, &c., every intendment and presumption shall be against the party who might remove all doubt by producing the higher evidence.

In examining this subject, it is proper to consider the two questions distinctly ; first, whether it is sufficiently proved, that the letter or document has come to the hands, and is in the possession and power of the opposite party ; and if this is satisfactorily established, then, secondly, what is sufficient evidence of the contents. In Pritt v. Fairclough, 3 Campb. 305, the letter-book of the party was admitted, though the clerk, who kept it, had deceased, on proof of his handwriting. Hagedorn v. Reid, 3 Campb. 379, is an authority to the same effect. Hetherington v.

Kemp, 4 Campb. 192, was an action on a bill of exchange, and the only question was, whether the defendant had received notice of its dishonor. Evidence was given by the plaintiff, that he wrote a letter at the time, addressed to the defendant, and put it on a table, where letters were usually placed which were to go to the post office. This was held not to be sufficient evidence, that the letter was forwarded ; but if' it had been proved that all letters so placed were usually carried to the post office, it might have done.

But afterwards, a letter of the defendant being put in, acknowledging the receipt of a letter of the plaintiff of the same date, though without referring to its contents, Lord Ellenborough said he would presume this was the letter written to inform the defendant of the dishonor of the bill. In Toosey v. Williams, 1 Moody & Malk. 129, the copy was rejected, because the evidence was not sufficient to show that the original had been sent. In Davis v.

Mason, 4 Pick. 159, a copy of a letter found in the possession of a deceased heir, who had acted as agent for the other heirs, had been admitted as evidence of notice to another party. The Court doubted whether this was properly received, because there was no evidence that any original was ever sent to, or received by such party. But the implication was strong, that if it had been proved aliunde, that some letter of the same character had been sent, the copy, found among the papers of the deceased agent, would have been admissible.

In the present case, the copy of the letter of the 16th was well proved by the clerk who made the copy and compared it with the original ; -he testifies that Dana sealed, and then took it away, and the box-keeper testifies that, shortly after, he received a letter from Dana, addressed to Kemble, and del'vered it as above stated. In regard to the other letter, the copy offered was in the handwriting of Dana, and found among his papers. The clerk testifies, that he had seen and read an original of similar tenor.

It is very short, containing but a few lines, and those of a character which the witness would be likely to recollect. Had the witness been offered to prove the contents, and had used this paper to refresh his memory, and then testified from memory, without offering the paper, we are of opinion that it would have been competent and satisfactory.

But the Court are of opinion, that from the proof that some original of the same date was written and sent, that the defendant has refused, on notice, to produce it, the intrinsic probability, that it was of the purport which the witness states, and which the copy imports, because the writer made a payment on that day, after sending a letter which he had refused to make the day before, the finding of this paper, in the handwriting of the deceased plaintiff, the distinct-testimony of the witness, that be had read an original letter, and that it was of the same import as that of the paper produced, the jury might well presume that this was a copy of the letter actually sent.

Itmustbe recollected, that the caution which is sometimes suggested, to induce courts to watch this species of evidence with some care, because otherwise a party might by artful management make evidence for himself, applies to the first part of the proof, namely, that an original has been actually sent and received. In such case, a party could hardly hope to obtain a fraudulent advantage, by preserving a false copy, because it would be always open to detection, by producing the original, which, in the case supposed, is in the power of the other party.

The Court are of opinion, that the evidence was rightly admitted, and that there must be judgment for the plaintiff on the verdict. '■