Dreisbach v. Berger

6 Watts & Serg. 564

• Court: Supreme Court of Pennsylvania
• Decided: March 15, 1844
• Status: Published

Opinion

Per Curiam.

The execution and delivery of a surplus bond is a constituent part of the title, and of course to be shown by the purchaser ; the filing of it is not. The delivery may be shown by the treasurer’s receipt for the bond ; for the purchaser having done all that was incumbent on him, may repose on the official evidence of the act, which is part of the res gesta : and the same may be said of the recital of such a bond in the deed; for the acknowledgment of the officer is the same whether it appear in the body of the deed or in a receipt at the foot of it. So far the decisions go. Bnt the proof here stands, not on the principle of res gesta, but on the common law rule that the best evidence must be produced — of what ? Certainly of the contents of the bond; for it would not be enough to show that a bond was given, without showing that it was for the proper sum. And what is the best evidence of that ? The bond itself, or an office copy of it in the first place, or proof of contents if it were lost or not to be had, in the second. But proof of loss or inability to produce any thing better, must precede proof of contents. Here the plaintiff offered to prove by the oath of the treasurer that a bond had been given and filed in the proper office. Then why not produce it ? There was no legal or physical impossibility in the way. That the bond was on file in the office of the parent county, from which the county in which the action was pending had been struck off, might have been a reason for postponement to give time, but it was no reason to dispense with the preliminary proof. The exception to the charge, resting as it does on the same ground, is also unfounded.

Judgment affirmed.