Krise v. Neason

The opinion of the court was delivered, January 3d 1871, by Sharswood, J. — It is certainly not to be denied, or even doubted, that to make a copy of a lost instrument of writing admissible, the evidence of the genuineness of the original from which it was taken must be of the most positive and unequivocal kind: McReynolds v. McCord, 6 Watts 288; Stones. Thomas, 2 Jones 209; Porter v. Wilson, 1 Harris 641. But it does-not follow that the only mode of establishing such genuineness is the testimony of a witness who saw the handwriting of the parties, and who knew and was able to identify it as such. If the party sought to be charged should himself hand the paper as genuine to a copyist, that certainly would be such an unequivocal acknowledgment of its genuineness as to dispense with any other evidence. The circumstances in evidence on the trial of this case as to the genuineness of the paper, a copy of which was offered and received, appear to us to be equal to such an acknowledgment. That there had been in existence an article of agreement, was a fact established beyond all controversy. Indeed it was not denied. That it was a contract of sale of the 100 acres of land for which the ejectment was brought at 75 cents per acre, that $50 was paid on account and a receipt written on the instrument, were facts testified to by the plaintiff’s own witnesses, as well as those of the defendant. A son of the plaintiff, examined on his behalf, was present at its execution. It was also in evidence by the testimony of both parties, and not disputed, that this written contract of sale was delivered to James Ross to keep as the mutual friend and custodian of both parties. He was the agent of both and each of them for this purpose. It appeared also, without contradiction, that the vendee, who was a brother of the vendor, had taken possession of the premises, and had afterwards made a lease to another brother. The present plaintiff then commenced an action of ejectment against the tenant, who, before the day of trial, called on Ross for the purpose of procuring a copy of the contract to submit to his counsel and prepare for his [259] defence. In his presence Ross made a copy from a paper which he produced as the original. That copy is the one now in question. It was compared in the presence of the witness, Ross wrote and signed a certificate underneath “ that the above and foregoing is a true copy of the article and receipt thereon written as left by the parties in my possession and with me remaining this 14th day of June, A. D. 1847.” Ross himself was a subscribing witness to the original. He was living when the ejectment came on for trial. The jury were called, as appears by the record, October 4th 1847, and the next day the plaintiff suffered a non-suit. Ross is now dead. After the most diligent search among his papers, the original is not to be found. Now it is plain that James Ross, so far as the paper committed to his custody was concerned, was the agent of Valentine Krise for the very purpose of keeping that document. Not to part with the possession of it unless in obedience to the subpoena of some court, and to furnish a copy when required by either party or any person claiming under them, was also a part of the duty which naturally devolved upon him. Why shall not his acknowledgment of a paper produced by him as the original when so called on be as good primá facie evidence of its genuineness as would its production by Valentine Krise himself? The evidence of John Krise to this acknowledgment of James Ross was positive and unequivocal, and the handwriting of Ross himself to the certificate was clearly proved. He had no interest to induce him to falsify. He had upon him the seal of the confidence of the plaintiff himself. Nor is this evidence, so far as the question of the admissibility of the copy to go to the jury is concerned, at all affected by other evidence calculated to inspire doubts as to whether it was a true copy from the original; such as the loose conversations of the parties going to show that there were other terms and conditions agreed upon not found in the copy; that there were other subscribing witnesses; that in 1844, three years before the copy was made, Ross had said that the original was lost or burned, and that he would have to try and make another one as near like it as he could. All this went with the copy to the jury, to whom was submitted the question whether upon the whole evidence the copy had been satisfactorily proved to be a true copy of the original. If one witness deposes positively to the handwriting of a party, whether to a lost or an existing paper, it satisfies the rule. The paper or copy is admissible, it matters not how many other witnesses may deny it or what circumstances may be proved to cast doubt upon it. The question of admissibility for the court is always the prima facies; the question of sufficiency remains for the jury. We think therefore that the court committed no error in admitting the copy for want of sufficient proof of the execution [260] and delivery by tbe parties of tbe original agreement, which forms the 1st assignment of error. As to the 2d and 4th assignments, that the evidence of search for the original was defective, the case of Cauffman v. The Presbyterian Congregation of Cedar Spring, 6 Binn. 59, decides that when a written agreement was placed by both the parties in the hands of a common -friend, who afterwards died, diligent search among his papers is all that is required. There was no evidence that it was ever in the possession of Joshua E. Cox, Esq., or of any other person but Ross. Nor is the 3d assignment sustained; for, waiving the question whether the mere copy by Ross in performance of a duty, which he had assumed to the parties, would not of itself be sufficient primá facie evidence that it was a true copy; it was testified by John Krise that the copy had been compared with the alleged original in his presence, he, Krise, holding the copy while Ross read the original aloud. Whether this was the proper mode of making the comparison, and whether it is not necessary that the copy and original should change hands, is a question upon which there is a considerable conflict in the decided cases: Reed v. Margison, 1 Campb. 469 ; Rolf v. Dart, 2 Taunt. 52; Gyles v. Hill, 1 Campb. 471; McNeel v. Perchard, 1 Esp. 264; Fyson v. Kemp, 6 Carr. & P. 72; Slane Peerage, 5 Clark & Fin. 24; Harrison v. Borwell, 10 Simons 380; Hill v. Packard, 5 Wend. 387; Lynde v. Judd, 3 Day 499; Starkie on Ev., 9th Am. ed. 271; 1 Greenl. on Ev. § 508. It is unnecessary to discuss the matter here, for it is certainly to be presumed that the trusted custodian of both parties read the original correctly. We see no error in the charge. The question whether the copy was a true copy was fairly submitted to the jury with such comments on the evidence as the learned judge had an undoubted right to make. Judgment affirmed.