Richardson v. Milburn

Bartol, J., delivered the opinion of this court. The only question presented by this appeal, arises upon the objection of the appellant (who was the defendant below) to the testimony of the witness Drury. The facts deposed to by the witness, and the purpose for which they were admitted, as well as the nature and history <?f the case, will be found fully stated ante 68, 69. It is contended that the testimony ought to have been ex-' eluded: first, because it was not the best evidence of the fact sought to be established; and secondly, because it was too vague and indefinite in its character to be submitted to the jury for any purpose. A brief examination of these objections will show that they ought not to be sustained. The rule which requires that the best evidence must be adduced to prove the fact sought to be established, and which excludes secondary evidence, is often misunderstood, and, in our opinion, has been misapplied by the appellant in the argument of this case. “The rule relates not to the measure and quantity of evidence, but to the quality. It is not necessary to give the [71] fullest proof of which a fact may admit.” Powell on Ev., 40, (96 Law Lib.) (Decided March 26th, 1861.) “ The rule does not operate in any case to exclude evidence mereljr because it is not all, nor the most satisfactory, which might be adduced, when the evidence which is offered, and that which is withheld, is all of the same quality or grade.” See 1 Phil.Ev., 668, note, and the authorities there referred to. On page 570, the author says: “Where there is no substitution of evidence, but only a selection of weaker for stronger proofs, or an omission to supply all the proofs capable of being produced, the rule is not infringed.” These citations sufficiently explain the import and nature of the rule we are considering, and furnish a conclusive answer to the first objection of the appellant. In the case before us, it cannot be said that the surveyor was 'the only competent witness to prove the fact testified to by Drury. The fact deposed to, occurred in the presence of the witness; if admissible at all, Drury was as competent to prove it as the surveyor would have been; the testimony of the latter might have been more conclusive or satisfactory, but if was of the same quality. The evidence received was not secondary or substitutional, in the sense in which such evidence is to be excluded, nor was it in any sense hearsay evidence. We think there is some force in the other objection to Drury’s evidence, on the ground of its vague and indefinite character. .But considering it in connection with the other testimony in the cause, we are of opinion that it was properly allowed to go to the jury, for the purpose stated by the judge. Although, of itself, it may have been weak and inconclusive, yet being derived from a legal source, and pertinent to the issue, the jury was the proper tribunal to pass upon it. Judgment affirmed.