Ellis v. Ellis

1 Mo. 220

• Court: Supreme Court of Missouri
• Decided: May 15, 1822
• Status: Published

Opinion

M’Girk, C. J.,

delivered the opinion of the Court.

This was an action of replevin, by the plaintiff in error, for a negro man. The only question relied on at the bar, is one presented by a bill of exceptions. The bill of exceptions states, that on the trial of the issues of property in defendant and non cepit) the plaintiff offered James Ellis, from whom he purchased the negro, to prove the loss of a bill of sale given by Erasmus Ellis to the witness for said negro, in order to let in other evidence to prove the contents of said bill of sale, which the Court refused. The question is, what shall be the evidence to the Court, to prove a deed or paper lost, before the contents can be resorted to? In cases of lost deeds, the evidence of the party in whose custody the deed ought to he, is always admissible, on the ground that, in general, this is the best evidence, unless where some one else had seen the deed destroyed; then that other person would be more free from objection than the party himself. Here James Ellis might be interested, yet he might not; that interest is only inferrible, depending on a contingency, if he had warranted the title, and that doos not appear from the record; but if this were the fact, yethe is competent to prove the bill of sale lost or destroyed, for the plaintiff himself would have been competent to that fact. We are of opinion, therefore, the judgment of the Circuit Court shall be reversed with costs.

Let the judgment be reversed, and the cause sent back to the Circuit Court for a new trial, with instructions to that Court to receive said testimony.