Haven v. N. H. Asylum for the Insane

Gilchrist, J. It is very probable, from the testimony of Mr. Coues, that a record was made of the appointment of the plaintiff as an agent of the Asylum, and it is certainly to be implied that the corporation kept records of their doings. The rule then applies, that the best evidence must be given of which the nature of the thing is capable ; that no evidence shall be given which supposes still greater evidence behind in the party’s possession or power. And if, in the course of a trial, it appear, either upon the direct or cross ex535 animation of the witnesses, that written evidence exists of the facts sought to l}e proved by parol, the parol evidence will be laid out of the case. Rex vs. The Inhabitants of Padstow, 4 B. & Ad. 208. If in a suit against a corporation it be desired to prove the acts of the defendant, its records, which are usually kept, are the best evidence, and should be produced. Owings vs. Speed, 5 Wheaton 424; 3 Johns. 226; 10 Johns. 154. The testimony of an officer cannot be received, to show what the votes are, or the authority conferred by them. Lumbard vs. Aldrich, 8 N. H. Rep. 31. And if the plaintiff desired to prove any facts which appeared of record, he should have notified the corporation to produce the books. If they had not been produced, he might then have given parol evidence of the votes of the trustees. Thayer vs. Middlesex Mutual Ins. Co., 10 Pick. 326. The depositions were, therefore, incompetent. It may be added, also, that in this case there was no evidence of the charter or the by-laws, so that it could be ascertained what powers had been given the trustees. These matters we cannot judicially notice. If the trustees had no power to appoint an agent, the action could not be maintained, and in that case the depositions would be immaterial. In the present state of the case, there must be Judgment for the defendant.