
    Stephen Torrey versus Andrew Fuller.
    A copy shall not be read where the original may be had. A copy of an order by which money has been drawn from the treasury of the commonwealth, thou gh sworn to be a true copy by the treasurer, is not admissib. e; the original must be produced.
    Assumpsit for money had and received. Plea, the general issu ?.
    The Solicitor-General, (Davis,) for the plaintiff,
    stated that the action was brought to recover money drawn out of the treasury of this commonwealth by a forged order; the plaintiff being a soldier or pensioner, and entitled to the money which the defendant had received on the order that had been forged in the name of the defendant. To prove the fact, he offered in evidence the deposition of the treasurer, in which was stated the copy of the order.
    
      Wild, for the defendant,
    objected to the reading of the deposition unless the original order was produced.
   Thacher, J.

I think the deposition is admissible. I do not say it would be sufficient evidence; *but I think it is evidence — one step towards proving the case. It is another question whether it is conclusive.

Sewall, J.

I am clearly of opinion that the deposition is not admissible; it not being the best evidence which the nature of the case affords. It would conclude nothing if admitted ; it would not prove that the defendant drew the money. The original ought to be produced for the purpose of identifying the defendant, by the hand-writing. If the treasurer cannot be brought here by a duces tecum, the original order may be annexed to his deposition.

Sedgwick, J.

I am of the same opinion. The rule, tiiat the best evidence, which the nature of the case admits is to be produced, ought never to be departed from. The security of all that is dear in society depends on a strict adherence to it; and it ought never to be made to bend on account of persons or circumstances. In this case, the best evidence, the original paper, is not produced ; no reason is given why it should not be, as the original is acknowledged to be in existence. And if the treasurer cannot attend personally with the order, he may annex it to his deposition.

Deposition excluded.  