Witter against Latham, 12 Conn. 392

Waite, J. Cyrus Latham, the original debtor, having been discharged from imprisonment, upon his petition for the benefit of the act provided for insolvent debtors, was sued, by the plaintiff, and described in the writ as an absconding debtor. Was he property so described ?

This depends upon the construction of the statute, which provides, that a debtor discharged from imprisonment “ shall be deemed an absconding debtor” within the meaning of the “ act authorizing the collection of debts by foreign attachmentand that it shall be lawful for his creditor “ to proceed against the goods, effects, and credits of such absconding debtor, in the hands of his attorney, agent, factor, trustee or debtor, in the manner provided in said act.” Stat. 257. (ed. 1835.) anno 1830.

The plaintiff, therefore, by the terms of the statute, liad a right to treat him as an absconding debtor, — to commence his suit against him as such, — and so to describe him in his original writ. The proof of his discharge from imprisonment will support the allegation that he was an absconding debtor. The statute says, he shall be deemed such, and speaks of him as “such absconding debtor.” No valid objection, therefore, existed against the admission of the original writ in evidence. Was the evidence respecting the loss of the certificate sufficient to authorize the court to admit secondary evidence ?

The statute directs, that “ the certificate given by the commissioners shall be recorded in the records of the court,” and “an authenticated copy thereof shall be admitted in evidence in all courts in this state.” Stat. 331,2. (ed. 1835.) The original certificate and a copy of record were each of them evidence ; and neither was produced, yhe commissioners testified, that they had granted such certificate, had discharged their duty according to the requirements of the statute, and made return of their doings to court.

The clerk of the superior court testified, that he had examined the files and records of the court, and could not find any such certificate or any return of the commissioners. The plaintiff had done all that could reasonably be required of him in relation to the production of the copy. He had procured the clerk of the court, who had the custody of the records, to examine the files and records, and nothing could be found. This, in our opinion, clearly was sufficient to excuse him for not producing the copy.

With respect to the original certificate, he produced the insolvent debtor, to whom the certificate was given, and who was entitled to the custody of it; and he testified, that he had received such certificate, but had not seen it for a number of-years, and did not know where it was. It is true, he did not state, that he had made search for it among his papers. Had there been any reason to believe, that there was any collusion between the plaintiff and the witness, it might heave been proper to have required such search.

But no circumstance appears justifying such a belief; and no such claim was made in the court below. The plaintiff had no power to compel the witness to make such search. He might, when he summoned the witness, have directed him to bring with him to court the document ; and the court would have compelled him to do all that was reasonable to comply with the direction in the summons. But had he been summoned in the manner stated, and testified as he did, would he not have been excused for the non-production of the document, unless it appeared that his omission to search for the paper was done by design?

If so, then the plaintiff has done all that the law requires, in calling upon the insolvent debtor in the manner he did. It is very difficult to lay down any general rule as to the de-greee of diligence necessary to be used in searching for an original document, to entitle the party to give secondary evidence of its contents. That must depend, in a great measure, upon the circumstances of each particular case. In the case of Brewster v.

Sewell, 3 Barn, Ald. 296., Chief Justice Abbott said, “ w'here the loss or destruction of the paper may almost be presumed, very slight evidence of its loss or destruction is sufficient.” Best, J. said, “if a paper be of considerable value, or if there be reason to suspect that the party not producing it has a strong interest which would induce him to withhold it, a very strict examination would properly be required ; but if a paper be utterly useless, and the party could not have any interest in keeping it back, a much less strict search would be necessary to let in parol evidence of its contents.” So in Renna v.

The Bank of Columbia, 9 Wheat. 581. 597. Thompson, J., in delivering the opinion of the court, remarked, that, “ if the circumstances will justify a well grounded belief, that the original paper is kept back by design, no secondary evidence ought to be admitted; but when no such suspicion attaches, and the paper is of that description, that no doubt can arise as to the proof of its contents, there can be no -danger in admitting the secondary evidence.” There is nothing in the present case, that leads to the presumption that the plaintiff withheld the certificate by design.

There is no evidence that he ever had it, or had ever seen it. The reason why the law requires the production of the original instrument, is this; that other evidence is not so satisfactory, when the original document is in the possession of the party, and where it is in his power to produce it, or get it produced, provided he gives notice.

In either of these cases, if he does not produce it, or take the necessary steps to obtain its production, but resorts to other evidence, the fair presumption is, that the original document would not answer his purpose, and that, it would differ from the secondary evidence which he gives with respect to the instrument itself. Brewster v. Sewell. The law, therefore, requires the use of all reasonable measures to produce the primary evidence ; and if it cannot be found, by the use of due diligence, the law raises a presumption of its loss, and admits evidence of its contents. Freeman v. Arhell, 2 Barn. & Cres. 494.

Taunton Bank v. Richardson, 5 Pick. 436. This rule of evidence is to be so applied as to promote the fends of justice, and at the same time guard against fraud and imposition. Renna v. Bank of Columbia. The cases upon this subject are numerous; and, upon a reference to the authorities, it will be found that they fully sustain the view we have taken of this part of the case. The King v. East Farleigh, 6 Dowl. & Ryl. 147. Kensington v. lnglis & al. 8 East, 273. Donelson v. Taylor, 8 Pick. 390. Hathaway v. Spooner, 9 Pick. 23. Jones & al. v. Fales, 5 Mass. Rep. 101. In the case of Coleman v.

Wolcott, 4 Day, 388. it was said by the court, that the loss or destruction of an instrument, which, in that case, was a contract under seal, was not a preliminary question to be decided by the court, but a material and traversable fact to be determined by the jury. Later decisions, however, have established a different rule, and, as we think, upon correct principles. It is the peculiar province of the court to decide upon the admissibility of evidence; and it is for the jury to weigh and consider that evidence, when received.

But the court cannot legally admit secondaty cvidence of the contents of a written instrument in consequence of the loss of that instrument., until it has found the fact of the loss. The court must, ita the first place, decide that question) and having decided it, there is a manifest impropriety in referring the same question again to the jury, and in suffering them to review a decision which the court has been bylaw required to make. 1 Stark. Ev. 354. Donelson v. Taylor, 8 Pick. 390. Walker v. Beauchamp, 6 Car. & Payne, 552.

It has been further urged, that, as it appears that the certificate had not been recorded, it could not operate to protect the insolvent debtor from imprisonment. This question also depends upon the construction of the statute. It directs, that upon the debtor’s having made his assignment upon oath, the commissioners shall grant him a certificate, “ and such certificate shall be evidence of his conformity, and as such shall operate to protect the person of such insolvent debtor from arrest or imprisonment.” Slat. 330. (ed. 1835.) A subsequent

section (sect. 6.) directs, that the certificate shall be recorded, and provides that an authenticated copy may be evidence. It is apparent, therefore, that the certificate, when granted, shall afford the protection. It takes effect from the delivery, and not from the time of recording. The object of the statute in directing it to be recorded, and in making a copy evidence, was, to render the evidence of the discharge more permanent. It is also claimed, that the finding of the county court ought not to have been admitted in evidence.

The statute provides, that, if it shall appear from the examination, that the garnishee has in his possession goods and effects of the defendant, or is indebted to him, “then the court shall ascertain the amount, and the same shall be sufficient evidence to authorize the court to render judgment therefor in fa vour of the plaintiff on a scire-facias against the garnishee” — “ unless the garnishee can prove, by new and further evidence, that he had not in his possession the goods and effects of such debtor, and is not indebted to him.” Stat. 256. (ed. 1835.) The statute, therefore, makes the amount ascertained by the county court, admissible, and in a certain event, sufficient evidence.

The plaintiff in the scire-facias must prove his claim upon the defendant. He cannot tell whether the defendant will, or will not, introduce any new or further evidence. It is not necessary that the defendant should do it, until, at least, a prima facie case is made out against him. The plaintiff, therefore, properly introduces the finding of the county court, and, in case no new evidence is introduced on the part of the defendant, that finding is sufficient; and it becomes unnecessary to introduce any other.

But if new testimony is offered on the part of the defendant, the plaintiff may meet it with testimony on his part. But, it has been said, that the county court, as it appears from the bill of exceptions filed in that court, in their examination respecting the liability of the defendant, erred in admitting improper testimony, and in refusing to allow an appeal from their decision. In our opinion, it becomes unnecessary to en-quire whether the county court erred in either of these particulars, as such error would not render their finding void.

If a court errs in admitting improper testimony, or in refusing a party an appeal, when he is by law entitled to it, the judgment may be erroneous; but will not, on that account, be void. It stands as valid between the parties, until regularly set aside, by due course of law. We discover nothing in the present case, which requires a departure from these well settled rules. We therefore think, there was no error in the admission of testimony on the trial of this eause.

But, another question remains to be considered; and that is, whether the verdict rendered by the jury was so far against the evidence as that a new trial ought to be granted. The rule upon this subject has become perfectly well settled, that a new trial may be granted when the verdict is manifestly against the weight of evidence. Kinne v. Kinne, 9 Conn. Rep. 102. Bacon v. Brown, 9 Conn. Rep. 334. Laflin v. Pomeroy, II Conn. Rep. 440. The only evidence offered on the part of the plaintiff, in support of his demand upon the defendant, was, the finding of the county court.

Had no new evidence been introduced on the part of the defendant, the jury would have been bound to give their verdict for the amount so found. The defendant introduced the testimony of four witnesses, whose testimony was not before the county court. This testimony goes to disprove some, if not all, the items of the plaintiff’s claim, as made in the county court; and taken in connexion with the defendant’s testimony and in the absence of all other, clearly shews, that the defendant was not indebted to Cyrus Latham. The only evidence to rebut this, is the finding of the county court. Was that sufficient ?

We think not. It does not appear upon what evidence the amount, as ascertained by the county court, was. found : whether the evidence preponderated strongly in favour of the plaintiff, or was nearly balanced. We cannot say but that if the county court had heard the testimony given in the superior court, they would readily have come to an entirely different result. The object of the statute undoubtedly was, to provide a

summary mode of determining the amount of property in the hands of a garnishee, or the amount of his indebtedness, without intending to bind him conclusively and at all events, by that determination. The statute, therefore, authorizes him to try the same question again upon a scire-facias, and shew, by new and further testimony, that the amount found by the county court was not correct. It is the duty of the jury to decide the case upon the evidence before them.

The defendant, on the trial in the court below, was admitted as a witness, although he stated, that he could not testify to any thing different from what he stated in the county court. His testimony alone would have availed him nothing against the finding of the county court, but was proper to be received in connexion with the new testimony offered by him : and it was perfectly immaterial which was first received.

Without recapitulating the evidence stated in the motion, we are inclined to the opinion that the verdict of the jury was so manifestly against the weight of evidence, that, upon that ground alone, a new trial ought to be granted. In this opinion the other Judges concurred. New trial to be granted.