
    Dennis against Barber and another.
    
      Monday, April 2.
    An extract from a lost letter cannot be the witness by rectnessS¡s°ófprom!°be ready to swear that there was nothing in the letter relating to the matter in controversy, which wasnot contained in the extract. And this evidence is particularly exceptionable, where nosufficientnotice has been given to the party who ■wrote the letter to produce his letter book containing a copy of it.
    The jury having assessed damages in an action of trover at what appeared to them, under all the circumstances of the case, to be a reasonable compensation for the injury the plaintiff had sustained, the Court refused to set aside the verdict, on au allegation that the damages were excessive.
    THE Chief Justice, before whom this cause was tried at ,T. . ~ , . , . Nist Prms, in March, 1821, reported it to be an action of f°r a bill excbange for 4805 dollars, drawn by Thomas and Robert Newell, in favour of the plaintiff, on Rathbone, Hughes, &? Duncan, of Liverpool, and dated Janu«ry 26th, 1808. It was endorsed to the defendants who were the plaintiff’s agents in Liverpool, by whom it was pre1 
      sented for acceptance, which being refused, it was protested, and the protest remitted to the plaintiff. It was afterwards protested for non-payment and returned to the plaintiff, by Whom it was sent back to the defendants, in order to have the opinion of counsel taken as to the propriety of instituting a suit upon it against the drawees. It was contended at the trial, that the defendants had detained the original bill and the documents accompanying it, in support of which, evidence was given which it is unnecessary to detail. On the arrival of one of the defendants in Philadelphia in the autumn of the year 1817, a notary public, at the request of the plaintiff, de-i manded of him the bill, together with the letters and other documents accompanying it. This demand was made in the street, and the defendant answered- that he knew nothing of the bill or of the plaintiff.
    The defence was, that the defendants had either never received the bill- after they had returned it to the plaiAiff under protest, or that they had lost’it, being unable, after diligent search, to find it j and that the drawers being insolvent, the plaintiff had sustained nó injury from not being in possession of the bill. After having read several letters from the plaintiff to the defendants relating to the matter in controversy, the defendants’ counsel, Mr. Levy, Offered himself as a witness to prove that the defendants had put into his possession, and left with him, a letter, bearing date 20th June, 1809, 'written by the plaintiff, and addressed to them ; that soon after receiving it he made a copy of, or an extract from it, he could not recollect which, and had lost the letter about eight months since ; that he had repeatedly made the most diligent search for it among his papers, and in every place in which he supposed it probable it might have been put, but had not been able to find it; that he was ready to swear that the said copy, or extract, was true and correct, and that there was nothing in the said letter relative to the business in question, which was not contained in the said copy or extract. He, at the same time, proved, that on the 17th February, 1821, two , days before the commencement of the Nisi Prius, he’had given notice to the plaintiff’s counsel to produce plaintift’s letter-book containing a copy of the letter in question.
    The admission of this evidence was opposed by the counsel for the plaintiff, and the Court - rejected it. Mr. Levy then offered himself as a witness to prove the contents of the said letter, and that there was nothing in it relative to the business in question, except what was contained in the said copy or extract. The Court, however, would not permit him to be sworn.
    The jury’ found a verdict for the plaintiff, and assessed damages at 500 dollars. ' • •
    A motion for a new trial having been made, it was argued by Levy, for the defendants, on two grounds :
    1st. That the evidence offered by the defendants at the trial, was improperly overruled.
    2d. That the damages were unreasonable and excessive.
    • 1st. The offer was to prove the contents of the letter as far as the witness recollected them, and tbat’the letter contained nothingíhaterial to the controversy, which was not-in the extract. The law has been gradually becoming more liberal with respect to proving the contents of lost papers, and, agreeably to the rules which now prevail, the evidence ought to have been, received. Phill. Ev. 338, 339. 346. De Haven v. Henderson, 1 Dali. 424. Villiers v. Villiers, 2 Atk. 72. Gar-wood v. Dennis, 4 Binn. 322. 1 Caines Cas. in Err. 27. Cary v. Campbell, 10 Johns. 363. Livingston v. Neely, 10 Johns. 374. Jacksons. Hosbrouck, 12 Johns. 192. The practice in Chancery is, that the party on a bill of discovery is entitled only to extracts of letters, if the party in whose possession they are, swears that the passages extracted are the only parts relating to the subject matter. Phill. Ev. 337. This is directly to the point. The object of the bill is to obtain a discovery of all that is necessary to make out the party’s case ; and if such extracts furnished by a party are sufficient, afortiori, they are so when proved by one who is impartial, and has no interest in the case. The notice to produce the plaintiff’s copy of the letter was given merely ex abundanti cautela ; for whenever a party may reasonably suppose, from the nature of the case, that a paper in his possession will be required, notice is unnecessary. It is urged, that the plaintiff Was absent when the notice was given, and, therefore, the paper called for could not be produced. To this the answer is plain : The defendants did not know of his absence, nor were they bound to know it. If absence is to excuse the failure to produce papers, a party may deprive his adversary of the means of supporting his case by absenting himself for the express purpose of avoiding notice. The plaintiff must have known what papers would be wanted at the trial, and, therefore, ought to have placed them in the hands of his agent before he went away. The rule with respect to notice does not apply to a case like this. Before secondary evidence can be given, it is necessary to give notice to produce the primary evidence in his possession ; but it has never yet been held that, to entitle a party to introduce secondary evidence, he must give notice to produce other secondary evidence, and the copy in the plaintiff’s letter-book is but secondary. It is moreover, evidence of a dangerous character, and far inferior to that which was offered ; for nothing can be more easy than to send off a letter, and instead of keeping a correct copy, make an entry in the letter-book to be used against the correspondent in case the original should be lost. It is no objection to a witness giving evidence of the contents of a letter, that he remembers only part. This must necessarily be the case in almost every instance, because the mind is naturally attentive to those parts which relate to a matter in dispute, and the rest is forgotten.
    2d. The damages are excessive. .There is no safety to society if a jury are to have unlimited power over a question of this kind. Here no injury has been sustained. It is usual to take three copies of a bill of exchange, which was doubtless done in this instance, and to keep one to guard against accidents.- Of these, only one of the set was sent out, according to the evidence, and a suit might have been brought against the-drawers on one of the copies retained. This, however, would have been fruitless, because the drawers were insolvent from the beginning. The plaintiff, therefore, under every view of the case, has suffered no damage in consequence of not having possession of the bill. 4 Bac. Ab, 686. Beawes L. M. 4-38. Bills ofJExch. sec. 176.
    
      J. R. Lngersoll for the plaintiff.
    The notice'was unreasonably short. The plaintiff resides in Georgia, where his business is carried on, and is here only in the summer and autumn, and had left the city seven months before the trial. The letter in question was lost,, according to Mr. Levy’s statement, eight months before the trial, yet no notice to produce the plaintiff's letter-book was pjyen until immediately before the commencement of the Court, nor was there even then any thing said of the loss of the letter. Insufficient, however, as the notice was, that object;on WOuld have been waved, had Mr. Levy been able to prove all the contents of the letter. Indeed every benefit which could have been derived from a regular notice was obtained. The secondary evidence was offered, but rejected because it was not competent. Had it been received, a highly dangerous precedent would have been established. Counsel are in the habit of examining a case only on one side, and are apt to make such extracts as they suppose will be to the advantage of their clients ; and if without being able to say what were the contents of the other parts of a paper, such partial extracts, which, in their opinion, contain every thing material, are to be received in evidence, great inducements are held out to fraud and perjury. The practice in relation to proceedings on a bill of discovery cannot influence this question, because the party there has every thing before him, and swears only to such as are material. In a case before Judge Washington, he refused to permit the notes of the district attorney to be given in evidence, accompanied by his oath that they contained the substance of what had been proved, because he could not say that they contained all the words which had been used.
    2d. With respect to damages, the jury were the proper and the only judges. They'have measured them by what they considered a just standard, .and, unless they erred grossly, the Court will not interfere. It did not appear that the drawers were insolvent; and if they were, they might again be in a condition to pay their debts. In proceeding against them without the bill, great difficulties would arise in proving the loss of the instrument and its contents; for the defendants, the only witnesses by whom the necessary proof could be supplied, could not be expected to furnish it for the plaintiff, when they fail to prove the loss for themselves, by doing which, or by producing the bill, they would have discharged themselves; and as to the plaintiff being in possession of a copy, which has been suggested, the fact is unsupported by the evidence. In trover, the measure of damages often depends upon circumstances. A thing may be of value to the plaintiff, but to nobody else. A family picture is an example of this sort of property, on which the owner may set a value far beyond the estimate-of any one else. When, therefore, property of another is withheld, the jury may, with propriety, assess the damages at its highest estimated value. He-cited 3 Burr. 1633. 1 Salk. 126. 284. Bull’s N. P. 37. Tod v. Crukshanks, 3 Johns. 432.
   Gibson J.,

delivered the opinion of the Court.

The motion fora new trial is urged on two grounds : 1st. That the extract of the letter from the plaintiff,, fortified, as it was, by the evidence of Mr. Levy, should have been admitted. 2d. That the damages are excessive.

1st. The loss of the original letter was sufficiently proved ; but the plaintiff being a merchant, must be presumed to have kept a letter-book containing a copy of the letter in question, which would have afforded better evidence than mere parol proof of its contents. Due notice should, therefore, have been given to produce it. The notice actually given, being only a few days before the trial, was, under all circumstances, too short; for the plaintiff had, for months before, left his residence in this city on a journey to the south, and notice to his counsel could not reasonably be expected to afford a fair opportunity to produce the copy of the óriginal, if such were in his possession. I cannot see how the suit itself could be notice ; for it is not founded on the letter, which neither party might, therefore, have reason to suppose would be called for. But if all other reasons should fail, that chiefly relied on by the Chief Justice, who tried the cause, would be amply sufficient. Mr. Levy did not pretend that either the extract offered, or his own recollection, embraced even the substance of the -whole letter. But it is urged that his offer to prove that the rest of it related, in no respect, to any matter in the cause, was equivalent to proof of the contents of the part not comprised in the extract. A decisive answer is, that for all this, we have only the opinion of a witness, (highly respectable for understanding and integrity I cheerfully admit,) who undertakes to say what the letter did not contain, without pretending to give an account of what it actually did contain; and although we would, in the present case, rely on Mr. Levy’s judgment with implicit confidence, yet, as every rule of evidence must he general, we would, if such evidence were competent, often be compelled to give credit to witnesses who could not claim any thing like an equal degree of respect., There can seldom be a sound construction of written evi« dence, without adverting to all the parts and considering the operation of the whole : but the operation of the several parts on tjje exposition of the whole, is seldom if ever perceptible to any but a professional eye ; and the danger would, therefore be, that the Court, while they thought they were deciding on a view of the whole, would be giving a garbled construction from a consideration of but a part. There is no analogy between a case like this and a bill of discovery, where the defendant is compelled to furnish evidence against himself; for not being bound to permit his antagonist to pry into his affairs further than may be necessary for purposes of justice in the particular transaction embraced by the bill, ex-traits are necessarily sufficient where he swears they contain every thing relative to the subject on which information is sought; and of that he must, from the very nature of the case, be exclusively the judge. Every day’s experience must bring home to the conviction of all men, the insecurity of reliance on mere recollection ; and I care. not, therefore, how strictly the construction of written evidence may be protected from the insidious influence of parol proof. In this we have already relaxed too far.

2d. A new trial will always be granted for very excessive damages j but the difficulty is to find a standard of what may be proper. In trover the value of the property is usually the measure of the damages ; although the jury are justifiable in going further, wherever there has been outrage in the taking, or, as I apprehend, vexation or oppression in the detention. But where the value of the property is itself incapable of being ascertained with any thing like precision, as where it depends on the taste, fancy, or attachment of the owner, or, as in this case, on a contingency, a Court will be cautious in meddling with the estimate of the jury, to whom the assessment of damages peculiarly belongs. Here the drawer of the bill is insolvent, but he may, one day, be abundantly able to pay the whole debt, and this was a possibility proper to be valued by the jury ; and even taking it that the plaintiff might, in the event ot the drawer becoming solvent, recover against him without having possession of the bill, still it is obvious the want of it would throw difficulties in his way, for which the defendant ought to afford him a recompense, the amount of which must, under all circumstances, be extremely uncertain. Here, then, the value oí the property, as being itself uncertain, could furnish but an imperfect guide ; and we, therefore, cannot say the jury have given too much, when they have given less than the nominal value. Beside, there was something like vindictiveness on the part of the defendant, which may have had its influence, and about which we cannot now inquire. The plaintiff must have judgment.

New trial refused.  