Hatch v. Carpenter

Shaw, C. J.

Without giving any definite opinion upon the question whether the amount of evidence required to warrant the admission of secondary evidence is a matter upon which exceptions may be claimed as of right to the rulings of the judge presiding at the trial, we must suppose that in this case the judge, by allowing a bill of exceptions which stated the testimony in detail, intended to submit to this court the question of law, arising thereon, of the sufficiency of the testimony introduced to warrant the introduction of secondary evidence.

The proof is clear of the former existence of the letter. What shall be considered sufficient diligence or sufficient thoroughness of search must depend on the nature of the paper and the circumstances of the case. The affidavit of the party is only necessary when from the nature of the paper it would be in his possession or is traced to him. But this was a letter addressed to the attorney, which had become unimportant to the party, and the custody of which would naturally be with the attorney. It was not a paper which would be kept with the care of an important deed or instrument. The search, as testified to by the attorney, appears to have been made in good faith and with sufficient diligence.

It has been said that the witness should testify to his knowl*

VOL. IX. edge that the paper is lost, and not merely to his belief. But the difference is, after all, nothing more than in the degree of certainty. With regard to things which make not a very deep impression on the memory, it may be called “ belief.” “ Knowledge ” is nothing more than a man’s firm belief. The difference is ordinarily merely in the degree; to be judged of by the court, when addressed to the court; by the jury, when addressed to the jury. Exceptions sustained.