National Surety Co. v. Brock

Walker, J., after stating the ease: The judge erred in admitting the oral evidence of the contents of the assessment list, as the rule is that they must be proved by the writing itself or by- an exemplified or certified copy thereof. 1 Elliott on Evidence, sec. 205: It is said that “the rule rests upon the presumption that where it appears that better evidence is withheld, the party who withholds it and seeks to substitute therefor evidence of an inferior kind has some sinister motive in doing so, or is conscious that his claim would not be supported, but would rather be defeated, if he introduced the best evidence. The object of the rule is to prevent fraud, and at the same time it brings out the most satisfactory evidence” and relates to the quality rather than to the quantity of evidence. 1 Elliott on Evidence, secs. 205, 206, 207, 212, and 409; Lockhart on Evidence, sec. 76; Rollins v. Wicker, 154 N. C., 560; Varner v. Johnston, 112 N. C., 570; Mott v. Ramsey, 92 N. C., 152; Cheatham v. Young, 113 N. C., at p. 165. Of course, where the ■original document is lost or its nonproduction otherwise excused, the rule does not apply. 1 Elliott on Ev., sec. 212; Varner v. Johnston, supra. It does not appear that the assessment list was lost nor that a, certified copy could not be produced. Our statute seems to recognize the “best evidence” rule in regard to Federal documents and has provided for just such a case as this one. Kevisal, sees. 1616, 1617, allowing a properly certified copy to be used as evidence to prove the contents of the original. The assessment is a matter of record in a public office or department of the Government and a certified copy can easily be obtained. The list, under U. S. Bev. Statutes, sec. 3187, when certified to the Collector of Internal Bevenue of the particular district, has the force and effect of a judgment and execution, and in an action by -the United States to, recover the taxes so assessed it makes a prima facie *509 ease of liability to tbe Government. Western Express Co. v. U. S., 141 Fed., 28 (72 C. C. A., 516). So nxucb more tbe necessity for requiring-a strict compliance witb tbe rule. We need not discuss other errors assigned. There must be a new trial because of tbe error indicated. New trial.