Taylor et al. vs. The Auditor, 4 Ark. 574

By the Court, Lacy, JT. Wheiher the bond produced supported the allegation or not, we do not deem it necessary to inquire. The plaintiff below, in assigning his breaches, has taken upon himself to allege, that the defendant has collected the money sued for, and he, of course, is bound to prove the averment, as he made it, by his election, material. And that fact has been directly put in issue by the plea of Clemens, which it was error to strike out, as it was a good answer to the declaration.

The admission of the Auditor’s certificate of indebtedness is, certainly, not competent evidence to charge the defendant, or his securities. We have no statutory provision making the certificate evidence, and it is certainly no proof, according to the principles of the common law. It is not the best evidence the nature of the case admits of; which is a universal rule, without exception. Secondary evidence is never resorted to, unless the higher grade cannot be produced; and, even then, it cannot be introduced, unless a proper ground be laid for its admission, showing the destruction or loss of the best testimony.

The evidence, to hare substantiated his indebtedness, should have been Taylor’s receipt, on the tax-book, or list transmitted to the Auditor, and for which he stands charged, after deducting the credits of delinquencies, lands stricken off to the territory, commissions, and the like. The instruction of the court was evidently wrong, in deciding that the truth of the breaches was admitted to be proven by the state of pleadings in the cause. This is unquestionably true, according to the principles of the common law, but our statute has changed the rule upon the subject.

Clemens’ plea, as before remarked, was improperly stricken out, which would have put in issue the truth of the breaches; and the plaintiff had no right to recover, unless he proved the collection,, as charged. The seventh

section of the act (Rev. St., Chap. 112,) declares, that, where an action is prosecuted, upon a penal bond, for the non-performance of any covenant, the plaintiff shall assign breaches; and, if judgment is obtained upon the demurrer, by confession or default, the court shall thereupon make an order, that the truth of the breaches shall be inquired into, and the damages assessed at the same, or the next succeeding term. This

section clearly shows that it was necessary to prove the breaches, as laid. Judgment reversed.