The first rule of evidence is that the plaintiff shall produce the best in his power, to exclude the idea that the better evidence remaining in his possession, was not withheld because it made against him. To this rule, however, there are divers exceptions, founded on necessity: If a man dies, and the subscribing witness becomes his administrator or executor, or becomes blind, or removes out of the State where the process of the court cannot reach, here, (405) in such cases and many others, the necessity of the thing forms an exception, and causes the presence of the witness to be dispensed with. The grounds of these exceptions do not make a better cause for exceptions than the cause before us. A fraud is practised to prevent the obtaining of this testimony, because if produced it would probably subject the witness to the payment of the debt; and fraud, whenever attempted under the sanction of the court, should be obviated by its decisions. The witness attempts to avail himself of the practice of the court to prevent a recovery; and it would indeed be an odium upon the law if such artifices could be effected. If a witness, when searched for, cannot be found, his handwriting shall be proved. Here the witness continues to be as much absent as if he could not be found, and the reason for admitting his testimony in the case now before us is as strong as if he could not be found. Let proof be given of his handwriting. It was given, and there was
Verdict and judgment for plaintiff.
NOTE. — See Tulloch v. Nichols, 1 N.C. 4, and the cases there referred to in the note. *Page 357