The court erred, we think, in submitting to the jury the question as to whether or not the witness Harrison had testified to any fact tending to prove an oral or parol agreement between Cunningham and Gumming, independent of the one in writing to which he stated they had given their assent. Whether there be any evidence on a particular Íoint in a cause, is a question for the court always to determine, t is within the province of the jury to determine the weight and sufficiency of such evidence, after being introduced under the eye of the court.-1 Greenl. Ev. § 49; 1 Best, on Ev. § 82; 1 Phil. Ev. p. 5 (10th Ed.).
The verdict of the jury, appointed in the year 1845, to view the land upon which the defendants had constructed the mill-dam in controversy, and to assess the appropriate .damages in the ad quod damnum proceedings, was proved by the same witness, Harrison, to have been reduced to writing and properly signed by the acting jurors, as was required by the then existing statute. — Olay’s Dig. 377, § 5. The acquiesence of Cunningham and Gumming to the terms of this written verdict was attempted to be proved, and the statement of the witness, who was one of the jury of inquest, was explicit to the effect that there was no other agreement between the parties than their verbal assent to the terms of this verdict.
The verdict was not produced, nor was any attempt made to account for its absence, so as to lay a predicate for secondary proof of its contents. The court very properly excluded the evidence relating to the verdict and its contents, but submitted to the jury to say, whether the parol assent to the verdict was an independent oral agreement, by which the right was accorded to Cunningham to construct a dam across the channel of the stream upon which his mill was erected. ' •
The rule is, that when a relevant fact consists of the substance of a document, or record, the writing itself must be produced as the best evidence of its own terms. Until the absence of the document is satisfactorily explained, in the usual and proper mode, the fact can not be proved by parol. *1361 Whart Ev. § 61; 1 Brick. Dig. p. 848, §§ 623, et seq. §§ 667-678; 1 Greenl. Ev. § 510.
The court erred, therefore, in this ruling to the prejudice of the appellant, and for this error the judgment must be reversed.
It is unnecessary to consider the other ratings of the court, as they were based upon the erroneous view to which we have above alluded, and are not likely to arise again on a second trial.
Reversed and remanded.