#### The Governor v. Roberts.

From Wake.

The rule that the bent evidence in' the power or possession oí a party shall be produced applies only to grades of evidence ; e. g. oral evidence shall not be received when there is written, a copy when the original may be. had ¿‘but where the evidence is all of the same grade, as the testimony of living witnesses, one is not to be excluded be. cause another had a better opportunity of knowing the fact deposed to, but the testimony should be left to a jury to be weighed by them.

This was an action of debt brought upon the bond given by the Defendant as assistant paymaster. The condition of the bond was as follows : “ if the said John Roberts, shall well and truly execute and faithfully discharge, according to law and to instructions received by him from proper authority, his duties as assistant paymaster-general aforesaid, and he, his heirs, executors, or administrators, shall regularly account for all monies received by him from time to time as assistant paymaster-*27general with such person or persons as shall be duly au-Usoriserl and qualified on the part of the lítate for that purpose, and moreover pay such balance as on a final settlement of the said accounts, shall he found justly d«e from him to the said State, then this obligation shall be null and void, toe.” The Defendant craved oyer and pleaded “ conditions performed and not broken.” The Attorney-General offered in evidence the account of the Defendant, settled with the Comptroller, and also a paper which he alleged was the pay-roll on which the account was founded. The Comptroller, with whom the settlement had been made, was dead, and this latter paper was in the possession of the Secretary of State, who tes-tiffed in Court that the prosmii Comptroller was absent, and that pm ions to Mr depart uro he had delivered the keys of bis office to the witness, with a request to him that he would attend to any applications which might be made in bis office durang his absence. The witness also stated, that he then attended the Court on behalf of the Comptroller, oras his agent, wish Ose papers of the office relativo to this transaction. The Comptroller was not. summoned to attend I ho Court. The Court rejected the writing purporting to be a pay-roll, without further proof of identity, and the jury returned a verdict for the Defendant,* — A motion for a new trial was refused, judgment rendered, and the Attorney General appealed.

Henderson, Judge,

delivered the opinion of the Court:

On whom it devolved to prove the violation or performance of the condition of the bond, depended entirely on the question, who held the affirmative in the issue ? Í»ut: in the progress of the cause it became entirely unnecessary to consider this point, for it appears that the Comptroller’s settlement with the Defendant, and receipt in full, was produced in evidence, which, if fairly obtained, was a complete bar. The only question. *28therefore, rema' mg for the consideration of the Coart is, was the Cour¡. below correct iu withholding the Ray-rojj^ from theJiiry? which pay-roll the Plaintiff alleged was the basis of the Comptroller’s receipt and settlement, and which, he said, he would shew contained forgeries and mis-statements. Mr. Secretary Hill, ssaced that the Comptioiler was absent on a visit to his family in Warren; that previous to his leaving Raleigh, lie- put his keys into the witness’s possession, with a request to attend to any business in his office, and that he thou attended the Court with the papers in this case, in the place, or on the behalf of the Comptroller ; from which, I understand that ¡¡’¡is paper, the pay-roll, was among the papers in the case. The question was as to the relevancy of the facts deposed to by Mr. Kill; that is, could the Jury rightfully infer from these facts (for the evidence is always admitted to be true when wc are testing -its relevancy) that this was the pay-roll, by which the settlement was made ? The settlement pre-supposed a pay-roll; that pay-roll was in the office of that officer appointed by Jaw to make the settlement and keep the vouchers, it was with the papers of this particular transaction; now whether this would satisfy the Jury, is not for the Court to say; if they are only part of the facts, do they throw any light on the issue ? If they are the whole, which in this case is admitted, do they warrant the Jury in drawing the conclusion that it. is the pay-roll? If the Jury would be warranted so to do, from the facts deposed to, the Court did wrong; if they would not, the Court did right. The rule that the best, evidence iu the party’s power or possession shall be produced, does not apply in this case, for that rule only applies to grades of evidence. Oral evidence shall not be received where there is written, a copy when the original can be had, the present Comptroller might, and no doubt would, be more satisfactory than Mr. Kill, not because his evidence is of a higher grade, for i'; would *29 hf, or.: i ha cacó ca.it*,, but because It is probable IicwukM depo'se to addiíiot»«l Iwcts ; to wit: that when be came i.;5 • sobeo, be found, oi* be did not find, the pay-roll thi;. file of papers; anti if the lave Comptroller was *u'\ ¡, be might be still moro satisfactory! but still the e\ idence is all of the same erado, ami tends to elucidate lite ?;»d>ject, and from which the bury might rightfully drrw the conclusion that it Is the same paper. If the ¡'%l*e '-vas. that the most full and satisfactory evidence should ho produced, it would follow that where it appealed there were others «resent, they should also be produced, or where a person from his situation had a better view of the transaction j one who had a less fa-vourable position shoo Id not be received, or where it appears that another could give, a more detailed account of the ailair, one who could not give so full a one should be esdntled, although their may ho no doubt as to his knowledge of the facts to which he deposes. I therefore think that the paper ought to have gone to the Jury, The Judgment should be reversed and a new trial, granted,.