Wade's Adm'r v. Work

13 Tex. 482

• Court: Texas Supreme Court
• Decided: July 1, 1855
• Status: Published

Opinion

Wheeler, J.

The statute (Hart. Dig. Art. 96) provides that upon affidavit of the loss of the original discharge, a certified copy shall be of equal force. But the party did not make affidavit of the loss of the original; but only that it was either lost, or mislaid, or in another county, where, if it was, he was advised it could not be obtained without an order of Court. It is clear that the affidavit was not such a compliance with the statute as would authorize the admission of the copy in evidence under its provision. On general principles, to lay a foundation for the introduction of secondary evidence, it must appear, either that the primary evidence is beyond the reach of the party, so that any search for or attempt to obtain it would be unavailing; or that there has been some search, or diligence used to obtain the latter evidence. Neither appears im the present case, and the Court therefore very properly excluded the proposed copy. The judgment is affirmed.

Jndgment affirmed.