Carlton v. Litton

4 Blackf. 1, 1835 Ind. LEXIS 2

• Court: Indiana Supreme Court
• Decided: May 25, 1835
• Status: Published

Opinion

EVIDENCE not relevant to the issue is inadmissible.

The contents of an instrument of writing cannot be proved by oral testimony, unless the absence of the instrument be first accounted for

(1).

If a party wish to introduce a written instrument in evidence, which is in the hands of a third person, he must take out a subpoena duces tecum (2).

With respect to the modes of proof,the first anti principal rule is, that the best evidence of which the nature of the caso admits must bo adduced; and that a party must not attempt to rely on what is termed secondary evidence, at least without proving that the former cannot Be adduced, and why; as on account of actual destruction of an original deed, or loss, after most diligent search, and subpoenaing every person wl^o is at all likely to have the best evidence in his custody or power to produce the same; and even then a jury will sometimes suspect that the best evidence is withheld, and will find a verdict against the party entirely on that account; and, consequently, in adducing secondary evidence, the utmost attention must be given to satisfy the jury that there is no suppression of, or want of exertion to obtain, the best description of proof. 3 Chitt. Gen. Prac. 809. See Coman et al. v. The State, Nov. term, 1836, post.

It is of no avail merely to serve a third person, who is a stakeholder, with notice to produce a document; but ho must be subpoenaed to produce the same. Parry v. May, 1 Mood. & Rob. 279.