DISSENTING OPINION OP
ME. JUSTICE PEANOO SOTO.In the complaint it is averred that in December, 1920, the plaintiff lent to Eduardo Cestero, the person from whom the right of the defendants is derived, the sum of $1,000, to be reimbursed the following year, with interest at 9 per cent annually. The averment was made in the complaint that Eduardo Cestero died leaving the debt unpaid, and the action being brought against his heirs, the question of the incompetency of plaintiff Angel Cestero as a witness in the case is raised by the appellants, who invoke in support of their contention section 3 of the Act of March 10, 1904, which provides that neither shall be allowed to testify against the other as to any transaction with, or statement by, the testator, intestate or ward, unless called to testify thereto by the opposite party, and the provisions of this section shall ex*918tend to and include all actions by or against the heirs or legal representatives of a decedent arising ont of any transaction with such decedent.
The appellants were not present at the trial and Angel Cestero was called to testify in his own behalf, stating substantially that in 1921 he lent his brother Eduardo Cestero the sum of $1,000 without interest to be reimbursed to him as soon as he soldi some farms located at Bayamón; that he delivered the money through his intimate friend Bafael Ramirez, who made the payment by means of a check; that Eduardo Cestero owned a farm at Pueblo Viejo and said to him that as soon as he sold it he would pay him, and that he did sell it, but did not pay him. And witness Rafael Ramirez said that in 1921 he received from Angel Cestero $1,000 to deliver to his brother Eduardo; that he deposited the money in the Banco Comercial and handed a check to Eduardo Cestero for the said amount.
It would seem useless to say that as the plaintiff stated that he lent the money through a third person, it is not necessary that we examine the sufficiency of his testimony in the light of the provision invoked by the appellants and which establishes the incompetency of a party to testify against the other as to any transaction with, or statement by, the decedent, but only to examine closely its effects in accordance with the general principles of evidence, inasmuch as in some other of the errors assigned the insufficiency of the evidence is maintained.
It is true that, as the trial was1 held in the absence of the appellants, there was no objection to the evidence thus introduced. However, it is not a question here of hearsay evidence, but of evidence which is legally insufficient, neither the absence of the defendants at the trial nor the omission of any objection to it being enough to cure its insufficiency or its illegality.
“It does not necessarily follow that the omission to object to testimony is a concession that it is competent. "Where evidence is *919against the law, the silence of the opposing party does not cure its illegality, and the court is bound, mero motu, to treat it as having no validity. Moreover, the court may properly exclude such evidence without any objection being made; and the ruling of a trial court, excluding' testimony, will be sustained if its introduction was improper, although counsel do not state the correct grounds of objection, provided the correct grounds, if stated, could not have been obviated.” 10 Cal. Jur. 822.
As the delivery of the money depended on the issuance of a check and this is one of the documents referred to in section 1138 of the Civil Code, which produces the effect of payment only when collected or cashed, the testimony of the witness had a legal aspect in that respect, and it would seem more natural that the check itself should have been produced, as this paper must have come hack to Ramirez after being cashed at the hank. The witness simply said that he did not have the check because at that time he was living at Bayamón and afterwards he went to Rio Grande. There was nothing clear in reference to the document’s being lost or destroyed, so that credit may or may not be given to his other statements. Evidence is governed by its rules, and one of its effects when the same are not complied with is contained in section 162 of the Law of Evidence, which reads:
“In civil cases the affirmative of the issue must be proved, and when the evidence is contradictory, the decision must be made according to the preponderance of proof.
“Proof is to be estimated not only by its own intrinsic weight, but also according to the evidence which it is in the power of one side to produce and of the other to contradict; and, therefore,' if weaker and less satisfactory evidence is offered, when it appears that stronger and more satisfactory was within the power of the party, the evidence offered should be viewed with distrust. ’ ’
The failure to produce the check iu this case should have been considered fatal to the plaintiff. The best evidence appears to have been suppressed without any legal excuse for not producing it.
*920“The rule requiring the production of the best evidence, of which the case in its nature is susceptible, is adopted for the prevention of fraud, and is declared to be essential to the pure administration of justice . . . By requiring the production of the best evidence, the law denies the admissibility of .that evidence which is merely sub-stitutionary in its nature, when the original evidence can be had.” Anglo-American Packing, etc., Co. v. Cannon, 31 Fed. 313, 314.
“It is said in the books, that the ground of the rule is a suspicion of fraud, and if there is better evidence of the fact, which is withheld, a presumption arises that the party has some secret or sinister motive in not producing it. Rules of evidence are adopted .for practical purposes in the administration of justice, and must be so applied as to promote the ends for which they are designed.” U. S. v. Reyburn, 6 Pet. (U.S.) 352, 367, 8 L. Ed. 424.
I believe it would be subversive of tbe sound principles of justice, tbat it should become an established rule that in the absence of counsel for a defendant the courts show excessive lenity in the admission of inadmissible evidence. I have not found any authority that would uphold such a theory, nor do I expect there is any. The Supreme Court of California, on the contrary, in the case of McGuire v. Drew, 83 Cal. 225, establishes as a more sound and healthy rule the following: “It is the duty of the trial court, when only one side is represented at the trial, to insist upon the best evidence attainable.”
' I insist that if the plaintiff did not limit himself to saying that he lent his brother $1,000, and that that sum had not been paid back to him, but went on to explain that he availed himself of a third person, who issued a check for the delivery of the money, none of these statements imply the meaning of “ultimate facts.” These should not be confounded with the elements of evidence to establish or disprove the facts in controversy. The “ultimate facts” are defined by Bouvier’s Law Dictionary, vol. 2, p. 1152, thus: “Facts in issue as opposed to probative or evidential facts, the latter being such as serve to establish or disprove the issue. ’ ’
*921A check, on its face, is a mere order to another to pay a certain snm of money, and althongh hy its terms it does not decide the question of whether the money was in payment of a debt or as a loan, at any rate it involves the delivery of money. If to the effect, of the payment of a debt the delivery of a check is conditional on its payment, the debt not being paid until the check is collected or cashed, the same principle applies to a loan. The delivery of the money remains at issue, or the loan is not made until the check is cashed by the debtor.. And this is what has not been proved in this case. I consider it a bit of subtlety to say that technically section 1138 of the Civil Code would not be applicable to the delivery of a cheek given as involving the amount of a loan, but only to the extinction of an obligation by its payment. But where there is identical reason there should be identical legal provision.
For the reasons stated the judgment appealed from should have been reversed and the complaint dismissed.