Bagley v. MeMickle.

or wherefore destroyed, is to make a benign rule, and then so restrict it as to deprive it of all good.

In Blade v. Noland, 12 Wend., 173, the destruction was held fatal to a recovery, because the mere naked fact of destruction appeared. The Court said: "The proof is that the plaintiff deliberately and voluntarily destroyed the note before it fell due, and there is nothing in the case accounting for or affording any explanation of the act, consistent with an honest or justifiable purpose."

Again, in reviewing the cases, he says, p. 175: "Where there was evidence of the actual destruction of it, the act was shown to have taken place under circumstances that repelled all inference of a fraudulent design." 2 Johns. Cas., 488; 3 Ca., 363; and other cases there cited.

In Riggs v. Tayloe, 9 Wheat., 483, the very circumstances under which the destruction was shown to have been made, by the plaintiff's own affidavit, enabled the plaintiff to give the secondary evidence.

In Adams et al. v. Leland, 7 Pick., 62, the preliminary proof to the Judge of the destruction of the documents about which the secondary evidence was offered, was made by one of the plaintiffs, and was not limited to the mere fact of destruction, but showed the circumstances under which it occurred, viz.: that it was "accidentally destroyed by fire."

In Taunton Bk. v. Richardson, 5 Pick., 436, the circumstances of the supposed destruction were set forth.

If the plaintiff's affidavit may be introduced, and is competent to lay the foundation for the introduction of secondary evidence, and if the circumstances of the destruction are an essential part of the preliminary proof of the Court, by what system of reasoning do we reach the conclusion that the plaintiff can show in his affidavits only the mere fact of destruction, and not also the circumstances under which destroyed? If the preliminary evidence is to the Court, and may be made by the plaintiff, or any one else, in affidavits, to say that everything that is requisite to lay the foundation for the secondary evidence, cannot be shown in the affidavits, is a simple contradiction of terms. It is laying down admitted premises, and deducing a conclusion which only consists of a denial of the premises.

3. The preliminary proof, to lay the foundation for the introduction of secondary evidence, is addressed solely to the Court. The Court must first pass upon this question, before the secondary evidence can be admitted to the jury.

This has been somewhat referred to above. In 1 Greenl. Ev., § 558, it is said: "And the question, whether the loss of the instrument is sufficiently proved to admit secondary evidence of its contents, is to be determined by the Court, and not by the jury."

Bagley v. McMickle.

The same point is maintained in Page v. Page, 15 Pick., 368; Poignaud v. Smith, 8 Pick., 278; Riggs v. Tayloe, 9 Wheat., 483; 5 Cond. U. S. R., 647; 4 Cow. & Hill's notes to Phil. on Ev., 408; 3 Ibid., p. 60, note 50; Tayloe v. Riggs, 1 Peters, 597; Donelson v. Taylor, 8 Pick., 389-90; Jackson v. Freer, 16 John., 195.

Many of the other cases herein recited sustain the same point. The Court held the same thing in its instructions to the jury. 4. The District Court, after receiving the preliminary proofs, to lay the foundation for the introduction of secondary evidence, admitted the secondary evidence to go to the jury, though objected to by defendant's counsel.

The District Court admitted the same secondary evidence upon all the former trials.

Had the Court sustained the objection of defendants' counsel to the introduction of secondary evidence of the notes, because not satisfied, the plaintiff would have offered further preliminary proof. That he had other proof, is apparent from the former trials.

5. After the secondary evidence went to the jury, it was solely for the jury to determine the issues of fact on the evidence introduced before them.

"We think very clearly that the question whether secondary evidence should have been allowed or not, was for the Court and not for the jury to determine. The jury might as well be called upon to decide upon the competency of any other evidence as upon this. The Court must decide what is and what is not competent evidence to be laid before the jury. The rule is just as clear as is the rule that after the evidence is submitted, the jury are to be the judge of the credit and weight of it." Page v. Page, 15 Pick., 374.

That a particular deed existed is a most material inquiry; the fact of its existence and the contents of the deed, are matters to be tried by the jury. The loss of it must be made out as Jackson v.

a prerequisite to the satisfaction of the Court." Freer, 16 Johns. R., 193, 196.

See, also, Bean v. Keen, 7 Blackf., 152; Riggs v. Tayloe, 9 Wheat., 483.

In Tayloe v. Riggs, 1 Peters, 597-8, the same point was decided. The Court there say: "Secondary evidence having been properly admitted, and the transfer of the stock and payment of the purchase-money proved, the next inquiry is into its competency to establish the contract stated in the declaration."

6. The instructions of the Court to the jury were directly inconsistent with the prior decision admitting secondary evidence of the notes sued on; were erroneous, so far as the law was applied to the facts, and took the case entirely out of the hands of the jury.

This is manifest from the foregoing points and authorities.

Bagley v. McMickle.

The Court had no right to comment to the jury upon the preliminary proof which was addressed solely to the Court, except for one special purpose, and that was the very opposite of the purpose of the Court in this instance.

The case of Page et al. v. Page, 15 Pick., 368 to 375, was, like this, an action of assumpsit upon a promissory note. The affidavits of the plaintiffs were presented to the Court to show the loss of the note, and were ruled to be presumptive evidence of loss, and sufficient to let in evidence of its contents. The jury found a verdict for the plaintiffs under the instructions of the Court. On appeal to the Supreme Court, one ground contended for by appellant was "that the Judge who tried the cause ought not to have commented on the affidavit of Kelly Page, which had not been read to the jury in evidence, and stated that it furnished sufficient ground to rebut the presumption arising from the non-production of the note by the plaintiffs, that it had been paid to them, and without which there was no satisfactory evidence tending to prove that the note had not been paid to them after a period of five years."

When the Supreme Court came to speak of the comment of the Court below on the affidavit, they use this language: "The only commentary made on the affidavit was an explanation of the reason why the Court had admitted secondary evidence. It was entirely proper, as some of the jury, without such an explanation of the rule of law touching secondary evidence, might have hesitated to give a verdict upon a note which was not produced. The whole charge, it seems to us, was unexceptionable upon that point."

How different was the view of the District Judge from the Supreme Court of Massachusetts! He commented on the affidavits to tell the jury "that there was no testimony to show there was anything due upon the notes sued on," though he also says the affidavits were sufficient "to satisfy the Court that the notes could not be produced on that trial, and to authorize secondary proof of their contents."

The Court then tells the jury the contents of the affidavits, which were addressed solely to him, and about which it is expressly said in the charge that they "are not evidence for the jury," and then states to the jury that "it raises a presumption in favor of the former, (that is, McMickle, the maker of the notes,) which plaintiff is bound to explain by additional evidence;" and again, in another part of the charge, says: "And there is no proof to rebut the presumption in favor of the deceased maker of the note."

This "presumption," according to the charge, arises from the affidavits. The affidavits were not before the jury. How could the plaintiff be bound to rebut this presumption by "additional

Bagley v. MeMickle.

evidence," when neither the presumption nor the fact out of which it arose, was before the jury?

It could not be that the "additional evidence" was to be introduced to the Court, because he had already passed on all the evidence addressed solely to him, and had been satisfied, and had permitted the plaintiff to introduce his secondary evidence to the jury.

The presumption" did not arise from the secondary evidence. It could not arise from the non-production of the notes sued on. The case of Page et al. v. Page, 15 Pick., pp. 374-5, is too good sense and too good authority for that.

With all due deference to the Court below, we must say this is a most palpable error of law.

The reasoning of the Supreme Court of New York, in Jackson v. Betts, 9 Cow., pp. 222-3, is so clear on this question, that we may be excused for extracting the following. The question there was on secondary evidence of a lost will, and on its effect when introduced:

"Let the question be examined on principle. The plaintiff is required to prove the will of the testator, and produce it, or show legal grounds for the dispensing with the production of the original. If the facts proved are such as the law sanctions, and excuse the production of the will, then the copy or contents of the will, proved, necessarily stand in the place of the original, and have the same legal effect. This principle is familiar in the case of all written instruments. If the original is lost or can not be found, you may resort to secondary evidence; and if that is sufficient, it supplies the place of the paper lost, or which can not be found. In these cases, was it ever urged as an objection, that after full proof of the contents, undisputed and unquestioned, a party was not entitled to all the benefits that would have arisen had the original been produced?"

That case was afterwards reversed in the Court of Errors, but not on any ground that affected this reasoning or these principles. It was reversed because the will was presumed, under the circumstances, to have been revoked; it therefore had no legal existence as a will, and, of course, there could be no secondary evidence of what never existed. Jackson ex dem. Brown v. Betts, 6 Wend., 173. But, as to the effect of secondary evidence of an instrument once shown to have existed, the principle and reasoning of 9 Cow., 223, are beyond contest. We ask the counsel for respondents, in the language of that case: "In these cases was it ever urged as an objection, that, after full proof of the contents, undisputed and unquestioned, a party was not entitled to all the benefits which would have arisen had the original been produced? We are not aware that any such objection has ever been sustained, or even raised," excepting always this

case.

Bagley v. McMickle.

The conclusion of the charge of the District Court to the jury took the case entirely out of their hands. It left the jury nothing to do but to find a verdict for the defendants, yet the proof was most unquestionably before them of the former existence of the notes, of their contents, of their execution, by the intestate to the plaintiff and Sinton, and the assignment by Sinton to the plaintiff. No evidence was offered by defendant.

In the charge to the jury the District Court comments upon the great inconvenience of the doctrine we contend for. He says: "If a party can and should recover, upon the testimony as it now stands, then any person who pays a note, takes it up, and destroys it, may be compelled to pay it a second time, if he is not prepared to defend by proof of actual payment." This is a most remarkable thing to say to a jury. It is not instruction, it is mere argument. But let us examine it. How does the danger in this case differ from the danger in Riggs v. Tayloe, 9 Wheat., 483; S. C., 1 Peters, 596; Page v. Page, 15 Pick., 368; or the cases cited in 4 Cow. and Hill's notes, to Phil. on Ev., pt. 2, notes, p. 405.

The danger apprehended, is to a man who pays his note and takes it up and destroys it, and has no proof of payment. Well, what is the danger? It is of course perjury, "which the law will not presume and can in no instance guard against," as Judge Washington says, in Martin v. Bank of the United States, 4 Wash. C. C. R., 256. "If," said he, "upon any other ground than fraud or perjury, the maker of the lost note may, by possibility be twice charged, the law will not expose him to that risk by relieving the owner of it, not because there may be imposition in the case, or the debt ought not to be paid, but because the proof that the claimant is the owner of the debt is defective," etc.

Glassel & Leigh for Respondents.

The question is whether, in an action upon a promissory note, under the general issue of a plea of payment, secondary prooof of the execution and contents of the note is sufficient, per se, to sustain the action?

To determine this question, it is requisite to ascertain what proof is necessary to sustain an action upon a promissory note. In Phillips on Evidence, 3 Lond. ed., vol. 2, p. 2, the law on this subject is thus stated:

"The plaintiff, in an action of assumpsit on a promissory note or bill of exchange, will have to prove, under the general issue:

"1. That the note or bill is either in express terms, or in its legal effect, the same as described in the declaration.

2. That he has an interest in the note or bill, as payee, endorsee, or in some other character.