Ellis v. Huff

Breese, J. It is a familiar principle, that the best evidence of which the nature of the case is susceptible, must be produced if in the power of the party seeking to use it. Another equally familiar rule is, that where the highest evidence cannot be had, then resort can be had to the next highest or secondary evidence. The proof was ample, of diligent and repeated searches, and in the proper places, for this execution No. 1353, and by the proper persons, and a failure to find it. The production of the execution would have been the highest and best evidence. Failing in that, the next best proof is the execution docket. The law requires the clerk to enter in a book, to be kept by him for this purpose, the return of the sheriff or coroner of all executions, within thirty days after the same shall be returned, etc. (Scates’ Comp. 267, chap. 83, sec. 45.) Having shown the judgment, this entry of the return of the execution, in the absence of the writ itself by reason of its loss, was the best kind of secondary evidence, and should have been admitted. Whether the plaintiff could or not make out a title under it, was a matter for after consideration. He had a right to the evidence furnished by this docket, and the court erred in rejecting it. The judgment must be reversed, and the cause remanded. No judgment was shown on which execution No. 1352 was issued, and consequently as to that, the evidence was properly rejected. Judgment reversed.