Swift v. Stevens

Williams, J. The objection to the testimony appears to be to all the testimony offered by the plaintiff; but no particular evidence is specified or objected to, except the deposition of Forman. Of course, the court cannot know precisely what other testimony was offered or admitted, or whether it was relevant or not. And it surely cannot be admissible for a party to object to a specified piece of evidence, reciting it, and then, under a general objection to all the evidence, ask the court to rule out all the testimony in the cause. The only question, therefore, to which the attention of this Court can be called, is, whether the deposition of the cashier of the Franklin Bank was evidence proper for the consideration of the jury. The defendant has attempted to establish the proposition, [436] that the plaintiff must prove the note destroyed; and that this evidence does not tend to prove that fact. The judge, in conformity to what, it was said, had been the charge, on a previous trial of this cause, informed the jury, that the plaintiff must prove that the note was destroyed. In this he went a little further, perhaps, than the rules of law will warrant; but of this the defendant cannot complain. It is certain, that the plaintiff must prove something more than the mere loss of the note; otherwise the defendant might be subjected to pay the note today, in the hands of Swift, and at a future time, he may be called on to pay the note in the hands of one claiming to be the bona fide owner. Nor is it a sufficient answer, that the note was over-due, when lost; because the defendant ought not to be put to the expense of defending against these several claims and the hazard incident thereto. Rowley v. Ball, 3 Cowen 303. 312. Long & al. v. Bailie, 2 Campb. 214. n. The plaintiff is not bound to prove an absolute destruction of the property; but “such proof must be given, by evidence of its destruction or otherwise, as shews, that the defendant cannot afterwards be compelled to pay the amount again to a bona fide holder.” 2 Stark. Ev. 227. Thus, evidence of loss, coupled with the lapse of eighteen years, was held sufficient evidence of the non-existence of the note or bill. Peabody v. Denton & al. 2 Gal. 351. Was this deposition, then, evidence tending to prove the non-existence of the note? It was claimed, on the part of the defendant, that it was entirely irrelevant; and cases have been cited from England and New-York, to shew, that this question has been there decided by the courts. But since the decision of this court in Coleman v. Wolcott, 4 Day, 394. it must follow, that any evidence, which would be admitted, in England, to the court, to prove the loss or destruction of the note, must here go to the jury for the same purposes. By our practice, the plaintiff avers, that the defendant made the note; that it is lost or destroyed; and that it is unpaid; and each of these facts is to be tried by the jury. Does then, the evidence tend to prove, that the note was destroyed, or did not exist? It was said, that the evidence in the deposition only tends to prove the loss, but not the destruction of the note. The defendant seemed to proceed upon the ground, that as the law carefully guarded the maker of the note from any injury arising from its loss, it would secure him fur [437] ther, by requiring proof of its actual destruction; and the argument went so far as to seem to exclude all evidence, except that of witnesses who saw it destroyed. This was not advanced in terms; but I think it was so in effect. On this subject, the evidence must be of such a character as tends to prove the fact. In this case, it appeared, that the deponent had the special charge of this note. It was confided to his care. He swears, that he never delivered it to any one; that he has searched for it, and cannot find it; and to all this he adds, he has no doubt it is destroyed. How much stronger is this than the evidence in Champion v. Terry, 3 Brod. & Bing. 295. where the evidence was, that the bill was transmitted by mail, and did not reach its destination, and was seen no more; but it was not shewn, that any enquiry had been made for it, or that it had been advertised. It is true, the court seemed to doubt whether this was sufficient proof of loss, although the evidence was admitted—perhaps, without objection. The court are now called upon to say, not that this deposition did not prove the destruction of this note, but that it did not tend to prove it; not that it was not sufficient evidence, but that it was no evidence;—that it was not of a character tending to prove the fact sought to be established, and ought not to have been submitted to the jury for that purpose. But unless we adopt it as a principle, that the destruction of such an instrument must be proved, by a witness who saw it, I cannot see any foundation for this argument. The counsel for the defendant might, indeed, before the jury, claim, that it should only satisfy them of the loss, but not of the destruction of the paper in question. This they doubtless fully availed themselves of. But to claim that it was not evidence for the consideration of the jury, is to claim that the court are to weigh the testimony, and if, in their opinion, it is not sufficient, are to withhold it from the jury. But upon subjects of this sort, direct and positive evidence is not to be expected. Circumstantial or presumptive evidence is the ordinary proof:—presumptive, as in Peabody v. Denton & al., cited above, where a note had not been heard of, for many years;—circumstantial, as where a variety of facts concur to raise a fair inference as to the principal one. Thus, where it was proved, that a trunk of papers belonging to a person deceased, was kept by his widow, and was, with the house, destroyed by fire; this was held sufficient to entitle a party to go into proof of the [438] contents of a certain letter of attorney to the deceased, although there was no direct evidence that it was in the trunk. Jackson d. Livingston v. Neely, 10 Johns. Rep. 374. Without expressing an opinion, therefore, as to the sufficiency of the testimony to prove the destruction of the note, I have no hesitation in saying, that if the testimony had not been admitted, it would have deprived the plaintiff of a privilege to which he was entitled in submitting the question of the existence of that paper to the jury, and would have laid a foundation for a new trial. In my opinion, therefore, the evidence was properly admitted. It is also contended, that there must be a new trial, because the jury were informed, that the notoriety of the controversy and the fact that there had been two former trials of the same cause, were circumstances of great weight in the consideration of the case. It is, to be presumed, that evidence of these facts was properly before the jury, as no objection is made on that ground. But it is said, that they ought to have had no influence upon the case; or, at least, that undue importance was attached to them. Remarks of the court upon the weight of testimony are not often grounds for a new trial; for if the verdict is not against evidence, whether the court or jury gave more effect to a particular part of the evidence than it was entitled to, is seldom, if ever, a subject of enquiry. But were it otherwise, I do not see any ground for a new trial. The question submitted to the jury was, whether the note was destroyed. The defendant claimed, that it was in existence, and he might be called upon, by another person. The plaintiff claimed to have proved, that it was destroyed. No positive evidence, however, of its destruction was presented to the jury; but the man, to whose care it was committed, swore, that he could not find it, and believed it to be destroyed. That four years had elapsed, and that the note had not appeared, were certainly circumstances strongly corroborative of the testimony of this witness. This testimony was satisfactory to prove, that the note was lost or destroyed. Still, it is said, it proved no more than the loss. Now, if a paper is lost, by an exposure to the winds and weather, for four years or more, it may well be presumed to be destroyed; but if it is lost, by being misplaced, or by coming into the hands of another person, who might not pay much attention to it, the [439] fact that much time had elapsed, that a controversy was existing respecting this paper, that a long litigation had been had, would naturally excite the attention of any one in whose possession the paper was; and a regard to justice, or his own interest or character, would naturally have led to its production. It would hardly be believed, that any individual having the paper in his possession, would, for four years, have entirely overlooked it, or that knowing it was in his possession, so protracted a controversy should not have called it forth. If the possessor claimed an interest in it, the controversy would lead him to make his claim known. If he claimed no interest, a sense of justice, and what was due to others, would, it may be hoped, lead him to produce it, for the benefit of the true owner. In this point of view, it was thought, and still is, that the notoriety of the controversy and the lapse of time were important circumstances and entitled to much weight. The fact that there had been two previous trials, was a fact strongly calculated to make the controversy notorious and excite attention. Possibly too much weight may have been given to those circumstances; but that the attention of the jury was properly called to them, I cannot doubt; and as there is no claim that the verdict is against evidence, there is, in my opinion, no ground for a new trial. Hosmer, Ch. J. and Daggett and Bissell, Js., were of the same opinion. Peters, J., having received, during the argument of this case, intelligence of the death of his son, Hugh Peters Esq. of Cincinnati, left the court house,—“multa gemens, casuque animum, concussus”—and gave no opinion. New trial not to be granted.