
    Storrs H. Moulton v. Hannah Mason, Administratrix of Charles Mason.
    
      Proof of seconda/)'y evidence. The refusal, after reasonable notice, to produce a document in the possession of the adverse party, and which the party demanding it is entitled to introduce in evidence, authorizes proof by secondary evidence; but it does not dispense with such proof as is attainable; nor allow the tenor of the instrument to he made out by anything less than satisfactory evidence of all that is essential.
    
      Documentary evidence: Refusal to produce on notice. The cases which hold that a party declining to produce a document when called for under a proper notice, is estopped from producing it afterwards, do not authorize such exclusion when the document relates to the case of the party holding it. Such a rule would bo better calculated for the punishing of parties than for the eliciting of truth; and, if it were ever proper, there can be no reason for it now when parties are competent witnesses, and can be compelled to bring into court any paper in their hands which their adversaries have any right to prove.
    
      "Witnesses: ■ Examination of parties: Act No. 125 of 1861. It is questionable whether the statute, which, in cases prosecuted or defended by the representatives of a deceased person, declares that the opposite party shall not be admitted to testify in relation to matters which, if true, must have been equally wirhin the knowledge of such deceased person, has any application to written documents: but when the representatives of the deceased have the means of proving the document by independent evidence, the case is not within the statute.
    
      Heard July 12.
    
    
      Decided October 5.
    
    Error to Branch Circuit.
    This was an action of assumpsit, brought by Hannah Mason, as the administratrix of Charles Mason, in the Circuit Court for the County of Branch, against Storrs H. Moulton. The plaintiff declared upon the common counts, to which the defendant pleaded the general issue, and gaye notice of a set off; and by mutual consent the cause was referred to David Thompson, Esq., to examine and report thereon. The questions for review in this Court arise upon the rulings of the referee as to the admission and rejection of testimony; to which exceptions were taken, and, on argument before the Circuit Court, were overruled, and a judgment entered for the plaintiff, which judgment the defendant brings into this Court by writ of error.
    
      C. I. Walker, for plaintiff in error.
    The only questions that will be discussed upon the part of the plaintiff in error, involve the construction and the proper application of the statute of 1861, providing, that in a proceeding prosecuted or defended by a representative of the deceased person, the opposite party shall not be admitted to testify “in relation to matters which, if true, must have been equally within the knowledge of such deceased person.”—Laws of 1861, p. 169.
    
    This statute was under consideration by this Court in the case of Kimball v. Kimball, and it was there said that the terms employed mean substantially the same thing as the New York code, which provides that the party shall not be examined “in respect to any transactions had personally between the deceased person and the witness.”— 16 Mich., 217. ■
    
    The decisions in New York still further illustrate the limitations of this provision.—Williston v. Williston, 4 Barb., 635; Simmons v. Sisson, 26 N. Y., 706; Lobdell v. Lobdell, 36 N. Y., 333.; Franklin v. Pinkney, 2 Robt., 429.
    
    The plaintiff’s testimony tended to prove that some weeks before the death of the intestate, that he got of the defendant said inventory for the purpose of making a copy, and that he “made or caused to be made” such copy, and a paper purporting to be such copy was received in evidence against the objection of the defendant. The defendant was then asked the following questions in relation to said inventory, and a paper purporting to be a copy thereof:
    1st. “State whether this is a copy of an inventory made between you and Charles Mason, of any goods purchased by you of him ? ”
    2d. “If that were a copy of any inventory which you ever made yourself of any goods ?”
    3d. “Is that a copy of an inventory Avhich you ever assisted in making?”
    4th. “State whether you ever had in your possession any book containing an inventory of which that is a copy ?”
    To each of which questions objection was made, the objections were sustained and the testimony excluded upon the ground that it related to a matter which was equally within the knowledge of the deceased and defendant, and that the defendant was therefore not a competent witness. The question is, — Were those rulings correct?
    We think it entirely clear, in the light of the adjudications above referred to, that the referee erred in rejecting the testimony. The making of such paper purporting to be a copy was not a matter that took place directly between the decedent and the defendant, nor indeed does it appear that the testimony tended to show that the decedent himself ever saw said copy so called, or that he knew whether it was a' correct copy or not. He may simply have caused some third person to make the copy, without ever having examined, compared or even seen it. But if his personal knowledge upon that subject was ever so perfect, it was not a matter equally within the knowledge of both in the sense of this statute.
    The remaining assignments of error rest upon precisely the same principle, only the error is still more clear and there is no pretense that the facts called for were within the knowledge of the decedent.
    The defendant was asked the following questions: State whether you paid J. W. Wright, of Oswego, for Mr. Mason, any money at any time, and if so, when, and what amount? State whether you made any arrangement, with Mr. Meader,. before Mr. Mason’s death, whereby you agreed to pay Meader, for Mr. Mason $52.09, and have you, since that agreement, paid Meader that amount?
    And it was objected that the defendant was not a competent witness thereto, and the evidence was rejected. It needs no argument to show, especially in relation to the first of these questions, that the referee erred in his ruling.
    
      Shipman & Loveridge, for defendant in error.
    The ruling complained of was upon this question, asked the defendant, a witness in his own behalf: “ State whether this is a copy of an inventory made between you and Charles Mason, of any goods purchased by you of him ?”
    The other assignments of error are to questions directed to the same end, and intended to establish the same fact, viz: that the paper was not a true copy of the inventory.
    One objection only appears to them in the bill of exceptions; but if others exist, the ruling will not be reversed although the objection stated be not good, for if the questions were asked over again, all the objections could be made. The objections are: There is better-evidence of the fact, viz: the original inventory in the defendant’s possession.
    After failure to produce the original, he could not contradict the secondary evidence given of its contents.—Doe d. Thompson v. Hodgson, 12 Ad. & El., 135; Doe d. 
      
      Higgs v. Cockell, 6 C. & P., 525; Bogart v. Brown, 3 Pick, 18.
    
    It was a matter equally within the knowledge of the deceased, Charles Mason.—Kimball v. Kimball, 16 Mich., 211.
    
    The question asked Moulton, — Whether he paid any money to Wright for Mason, was not proper, because — the finding by the Commissioners of the amount due Moulton 'from the deceased was final. — 2 O. L., § 2929. It was a matter equally within the knowledge of the deceased; or it was a voluntary payment by Moulton to Wright which could not be charged to Mason.
   Campbell, Ch. J.

Suit was brought by Mrs. Mason as administratrix of Charles Mason, deceased, among other things to recover the price or value of certain goods sold to Moulton by the deceased. Having introduced evidence tending to show the sale and delivery to Moulton of the property in question, and that Mason and Moulton examined and made an inventory of it, which was written in a book in Moulton’s handwriting, and taken into his possession, further proof was given on her behalf to the effect that Mason, three or four weeks before his death, called upon defendant and got from him the book containing the inventory to be copied; that he made or caused to be made for himself a copy of it, and that the book was returned to Moulton. Notice to •produce the original having been served upon Moulton, and he not producing it, an alleged copy was offered in evidence, and received against his objection.

When the defendant’s case was in progress, offers were made to prove by his testimony that the paper produced was not a copy of that inventory or of any inventory of any goods ever purchased by defendant of Mason, or of any inventory ever made by him at all, or which he ever assisted in making. And an offer was also made to show by his testimony when on the stand that he never had in his possession any book containing an inventory of which that was a copy. All of this testimony was ruled out. The Court also rejected his testimony, offered to show a payment made by him to one J. W. Wright, of Oswego, for Mason. Similar testimony was rejected, to show that an arrangement had been made with one Meader, before Mason’s death, whereby Moulton was to pay, and did pay, Meader for Mason a certain sum of money.

We are at a loss to discover any reason for the rejection of the two latter items. Evidence of payment is always admissible in defense of an action of asswnpsit, and. if money was paid to a third person for the deceased, further proof that the payment was authorized or ratified, or the money paid over to him, would put it on the same footing as if made to himself. ■ We cannot imagine on what ground it was held inadmissible.

The principal reason alleged for the exclusion of the other testimony was, that it came within the prohibition of the statute as relating to facts equally within the knowledge of defendant and the deceased. It was also insisted that by not producing the original of the inventory when demanded, he precluded himself from ■disputing the correctness of the copy.

The refusal, after reasonable notice, to produce a document in possession, which the adverse party is entitled to introduce in evidence, authorizes proof by secondary evidence. But it does not dispense with such proof as is attainable, and does not allow the tenor of the instrument to be made out by anything less than satisfactory evidence of all that is essential. There is no rule which prevents tbe contradiction of such secondary evidence, or which will allow a document to be conclusively proved by anything that a party may see fit to affirm to be a copy. Dispensing with primary evidence only changes the degree of evidence required, but in no way allows a case to be made out without proof, or prevents counter proof. The rule enforced in the present case is equivalent to excluding all testimony for the defense on a principal issue. This would be an arbitrary and monstrous doctrine.

It seems to have been rested on the supposed rule that a party who refuses when requested to produce a document in his possession, shall not afterwards be allowed to produce it to contradict the secondary proofs of his adversary. That, however, was not attempted here. There was no admission that the paper in question was in Moulton’s possession, and the questions put to him on the defense did not call for its production. They were put in such a way as to draw out parol evidence as readily as written.

But we do not perceive any very sound reason why the document itself should be excluded, if he had it. There are, indeed, some cases, which were cited on the argument, which seem to hold that a party declining to produce a document when called for under a proper notice, is estopped from producing it afterwards. There is no authority for such exclusion where it relates to his own case, even where not produced when called for by his adversary.—2 Phil. Ev. (Edward’s Ed.), 535. But this doctrine of estoppel has not found its way very generally into the text-books, and cannot be said to be among the old or established principles of the, law. It is not a rule calculated to further the eliciting of the truth. It is simply an attempt to punish one party by allowing his adversary to recover what does not belong to him, or to defend unjustly against a proper claim. Any rule, which rejects cértain proof for uncertain, deserves very little respect.

If such a rule could ever have been proper, there can be no reason for it now, when parties are competent witnesses, and can be compelled by subpoena duces team to bring into court any paper in their hands which their adversaries have a right to inspect, and prove. The inventory in the present case appears to have been such a document, relating to the case of the plaintiff below, and measuring or bearing upon the amount of her claim. If Moulton had it in possession, such a subpoena would have reached it. If not in his possession, a sufficient search and diligence would have been required to justify secondary proof.

The remaining questions all relate to the propriety of excluding the testimony because equally within the knowledge of the decedent during his life. To see the bearing of the objection, it must be considered in connection with the facts as elicited. The plaintiff below, suing as administratrix upon a claim of the decedent against defendant, had not found it necessary to call defendant to prove anything. The whole case had been made out by witnesses. There was proof tending to show the sale of the property out of which the claim arose, — proof that the two parties made an inventory which was recorded in defendant’s handwriting,— proof that Mason obtained it of defendant some weeks before his death, and copied it or had it copied, and that he told defendant wh^ he wanted it, and proof identifying that copy. It appears from this showing that the facts material to be proved, while within the knowledge of Mason and defendant, were also within -the knowledge of others, and provable by them. It does not appear that the copying of the inventory took place in the presence of Mason and defendant, or of either of them. The whole controversy, as it appears on the record, is concerning the correctness of the copying of a written document.

It is certainly questionable whether the statute excluding testimony in relation to matters equally within the knowledge of the deceased and the witness, has any reference to written documents, which are designed to supersede evidence resting in memory merely and capable of perversion. But when, as here, the representatives of the deceased have the means of proving the existence and contents of the document, and take it upon themselves to do so by independent evidence, the case is not within the mischief of the law, and is not covered by it. Proof of the correctness of a copy is still more remote, and in this case appears to relate to a matter which was not jointly managed, and on which it is quite likely Mason, if living, would not have been able to testify. Any one who had compared the papers when made, or subsequently, could give evidence on this point. It is an independent fact, quite outside of the original dealings which may have given occasion for the execution of the paper, and not dispensing with proof of that execution. The copy might be made after the death of both parties, or without the knowledge of either when living. And their knowledge or ignorance could not affect its correctness.

The rulings were erroneous, and the judgment should be reversed with costs, and a new trial granted.

The other Justices concurred.  