
    Timothy W. Beery, by next friend, vs. Batson Jourdan.
    
      JEvidence — Proof of contents of lost deed — Refreshing memory.
    
    "What is sufficient proof of loss of an original deed in order that secondary evidence of its contents may be given.
    A witness may, it seems, be allowed to refresh his memory as to the contents of a paper, by reading that which purports to be a copy, though it was not made by himself, provided that after reading it, he can speak to the facts from his own recollection.
    A witness who had heard a deed read nineteen or twenty years before the trial, and had not seen it or a copy since, swore to the contents, (the deed having been lost,) and his testimony was strongly corroborated by other evidence in the cause : Held, that this was sufficient evidence to sustain a verdict supporting the deed.
    BEFORE "WITHERS, J., AT DARLINGTON", FALL TERM, 1858.
    Tbe report of bis Honor, tbe presiding Judge, is as follows:
    
      “ This action was in trover, and was brought for tbe value and hire of six negroes, viz: Ebina, Peter, Prince, Isaac, Tom and Dick. Tbe four last were tbe children of Ebina.
    “ Tbe claim of tbe plaintiff, a minor of sixteen or seventeen, was founded upon a deed alleged to have been executed by bis grandfather, one Eichard Allen, to bis mother, tbe only child of Allen by bis first marriage, whereby a life estate was given to tbe mother, and tbe remainder to the plaintiff.
    “ Tbe plaintiff undertook to establish tbe-existence and loss of tbe original deed.
    “ Seaborn Berry, plaintiff’s father, was examined as a witness. He testified that be bad left this district about the year 1841, and went to Alabama, and bad heretofore been back but once on a visit. That he once had a deed executed by Eichard Allen, which conveyed Peter, Bliina and Phillis, and their increase; that when he went off, he left it in the hands of either the defendant, Jourdan, or of his attorneys at law, Messrs Gr. W. & J. A. Dargan; that it was not among his papers; that he had examined them for it; (he'said this on the direct examination, but on the cross-examination he would not affirm he had examined specially for the paper, but he affirmed that he had but very few papers, and he knew it was not among them, and he had it not); that the deed was from Eichard Allen to his daughter Mary Jane, whom he had married, who had died a good many years ago, as he understood; that he did not see it executed; that he knew he had not taken it away with him; that he had left papers with the defendant, papers to be handed to his grandmother, Dolly Zilks; (he specified only a note for five hundred dollars, made by the defendant in his favor, for part purchase money of these same negroes, sold by him to defendant); that there were other papers left with defendant, which he could not specify; that Mrs. Kennedy, at her own house, some ten days before he married Marjr Jane Allen, she and her father Eichard Allen being present, delivered the deed to Mary Jane, and she to him ; that the deed was read and given up to her ; that afterwards, and not before, Allen seemed hostile to his marriage with his daughter, but they did marry : that he thought that he had the deed recorded in the Clerk’s Office, and he thought he did not carry it from this district.
    “ J. A. Dargan, Esq., testified that between the years 1837 and 1840, Gr. W. & J. A. Dargan had what purported to be a deed by Eichard Allen, specifying Peter, Phillis, &c., and that they had it for the purpose of a suit between Eichard Allen and Seaborn Berry; that after they got it, it was taken away, and delivered to tbem again, and tbat some time after tbe trial be believed be bad delivered it to Seaborn Berry ; tbat be could not find it; (and it was admitted tbat Chancellor Dargan would say be could not); tbat be was familiar with wbat was said to be a copy, but be spoke from recollection of tbe original.
    
      “ A notice bad been served on tbe defendant, by wbicb be was required to produce tbe original, else an office copy would be offered in evidence; tbe defendant’s response was, tbat be bad not tbe paper,- and never bad. (Tbe last assertion, tbat be never bad,” was objected to, but I received it.) I did not permit tbe plaintiff to introduce a paper purporting to be a copy certified as from tbe Register's book, nor tbe book itself.
    “James Tbornbill testified tbat be was Mrs Kennedy’s overseer for ten years; tbat in tbe meantime, i. e. in 1837 or ’38, Richard Allen, Mary Jane and Seaborn Berry were there, before tbe marriage of tbe two latter, a few days; tbat be was called into tbe bouse; tbat tbe above persons were sitting by tbe fire in tbe ball; tbat Mrs. Kennedy said she bad called him to witness tbe delivery of a deed of gift from Bichard to Mary Jane Allen; thereupon she went into an adjoining room, carné back to tbe door of tbe partition, called Mary Jane to her, and she went, when Mrs K., said, here, Jane, I deliver you this deed of gift in' tbe presence of witnesses ;’ tbat it was read by Miss Ann L. Kennedy; tbat three Thomas Kennedys were witnesses to its execution; tbat it purported to be signed by Bichard Allen, and conveyed Peter, Bbina, and Phillis; tbat Mrs. K., said it bad been left with her by Bichard Allen, to be delivered to Mary Jane when called for; (here, on defendant’s objection, I .excluded tbe testimony of this witness as to its terms); tbat tbe witnesses were Mrs. K.’s, connections, and be thought be bad beard they- were all dead; tbat two of tbe witnesses were ■ named Thomas, be thought all three were: tbat Bichard Allen was in condition to see and bear every thing, and made not any objection, or said a word.
    “ Upon this evidence T held secondary evidence of the contents of the deed to be admissible; and Thornhill said, he remembered enough of the original paper to say that the paper before him was a copy. After glancing at the paper, at any rate not reading it carefully or entirely, he undertook to give the contents of the original deed from memory, as he heard it read by Miss Kennedy, and stated it thus: ' I, this
    day, give to my daughter Mary Jane, Peter, Ehina and Phil-lis, and to the issue or heirs of her body; and if she dies leaving no heirs, (or issue, I forget which,) to return to my estate and be divided as the law directs.’ He said he had never seen any copy of the paper before, and affirmed that the paper before him was a true copy. He was required, on cross-examination, to read the paper, which he did, mistaking ‘ bear’ for hear,’ and ‘ divers’ for devises.’
    “ Mrs. Kennedy’s deposition was read, and amounted to this : that she heard Eichard Allen give instructions to her husband, Thomas Kennedy, to write a deed giving certain negroes to Mary Jane; that her husband did so, and it was executed in her house about thirty-one years before she spoke; that it was placed in her care for safekeeping, and she delivered it to Mary Jane in presence of Thornhill and one Hicks, one or two weeks before Mary Jane was married; that she could not remember the date; that three negroes were conveyed, the names she could not remember; that they were intended to be entailed to Mary Jane’s issue; and she had not seen the deed since; that she relied, in what she testified, upon her own recollection and having heard the deed read; that it was handed to her husband, and by him to her, to be kept in her trunk; that after the deed was delivered to Mary Jane she gave it to Berry, and she did not remember that Allen objected to the delivery.
    “ The copy of the deed, to which Thornhill referred, and wbieb be said conformed to tbe original, accompanies tbis report.(a)
    “It appeared in evidence that defendant bought four of tbe negroes, now sued for, (two bave been since born of Rhina,) from Berry, tbe plaintiff’s father, in tbe lifetime of bis mother, for fourteen hundred dollars — that while they were.negotiating, defendant suggested obstacles: one was, tbe taking tbe negroes from Berry’s wife, but that was gotten over by tbe declaration, that Berry was determined to sell; tbe other was, ‘but there’s that deed that Allen made to Mary ;’ with regard to which tbe defendant was represented to bave sáid, be did not care so much about tbe deed then, and it was likely when tbe child came of age, they would be so poor they would do nothing about it.’
    “ A good deal was introduced as to tbe description of tbe negroes and tbe value of them. Tbe four boys bad been sent to Charleston in 1853, by the defendant, and exchanged for other negroes. Several of tbe family relations of tbe defendant, were called as to value; and according to their testimony, Peter and Rhina were tbe subject of ailments, no
    (a) The copy referred to is as follows :
    “State of South Carolina,
    “ Marion District :
    “Know all men by these presents, that I, Richard Allen, of the State and District aforesaid, for-and in consideration, the love, good will and affection which X have and do bear towards my beloved daughter, Mary Jane, and for divers other causes and considerations, me hereto moving, do lend unto my daughter, Mary Jane, three negroes named Rhina, Phillis and Peter, and all their future increase, during her natural life, and after said daughter, Mary Jane, dies, then the said negroes and their increase I give to the issue of her body forever; but, if my daughter, Mary Jane, should die leaving no issue, then the said negroes and their increase to ascend back to my estate, and be divided at my discretion, or as the law directs. Given under my hand and seal this 12th day of February, 1821.
    “RICHARD ALLEN, [seal]
    “ Signed, sealed and delivered in the presence of “ Thomas Kennedy, Sr.,
    “ Thomas Kennedy, Jr.,
    “Thomas Kennedy, Minor.” doctor baying been called for either; Peter baying rupture, for wbicb a blacksmith bad furnished a truss, and Rhina being the subject of fits, epileptic I suppose; but she had produced two children since 1840 ; she was perhaps forty years old. By some of the witnesses, Peter and she were estimated,' each, at $300, and both did work in the field. The eldest two of the four boys, were born before 1840; Prince (said Berry) was four or fiye years old in November, 1840, which would make him now twenty-one or twenty-two. The others were younger in gradation, but their ages were only approximated ; they had not been accessible since, 1853. The defendant’s son-in-law, Eli Odum, put the following estimate on the negroes:
    Prince $700, Isaac $650, Tom $600, Dick $500, Peter and Rhina (each $300) 600 — aggregate $3,050.00
    The conversion was in 1853, more than four years ago. Estimating hire as follows, for four years, viz:
    Prince $400, Isaac $400, Tom $350, Dick $300, Rhina and Peter (together) $400— aggregate hire 1,850.00
    Total for value and hire would be $4,900.00 It may be well disputed, I think, whether the above estimate for the value of the negroes, the boys especially, is not too low. At any rate the jury had every thing on that subject before them.
    “ The jury were told that I had admitted as competent, evidence of the contents of the deed, and if it were such as represented, the limitation over in favor of plaintiff, who was the only remainder-man, was good; but, after admitting such evidence, the defendant might show, if he could, that no such deed was ever made, or if made ever delivered; or, that its contents were misrepresented ; and if the defendant was successful on either of those grounds, on this occasion, the plaintiff could not recover — moreover, that if plaintiff bad ■ maintained bis case, be could recover tbe highest value and the highest hire between the conversion and the verdict.
    “ They found for the plaintiff five thousand dollars.”
    The defendant appealed, and now moved this Court for a new trial, on the grounds :—
    1. That the evidence of the loss of the original deed, under which the plaintiff claims, was, under the circumstances of this case, insufficient to lay the foundation for the admission of secondary evidence of its contents.
    2. That the only witness who testified to the particular terms of disposition, contained in the said deed, although he swore he had never heard it read but once, and that twenty years ago; had never seen it or a copy of it since, and had not been informed by any one of its contents; was permitted to read an alleged copy made by another person, in order to refresh his memory when called to the witness’ stand.
    3. That the evidence of the contents of the alleged deed, and of the particular terms of it, under which plaintiff claimed, was altogether too uncertain and unreliable in its nature, to sustain the verdict for the plaintiff.
    4. That the damages f<||ind are excessive, unsustained, in their amount by the testimony, as to the character and physical condition of the negroes ; and the actual market value of them, or by any reasonable view which could, upon the evidence, be taken of the value, and bears the appearance of being vindictive and punitive, rather than compensatory.
    
      Dccrgan, Inglis, for appellant.
    1. It is submitted that, when a deed has been lost or destroyed, the fact must be proved; if positive proof of the loss or destruction cannot be had, it must be shown that a bona fide and diligent search has been made for it in vain, where it was likely to be found. The witness Berry, the father of the plaintiff, having failed to search among his papers for the deed, and the parties, to one of whom he supposed he had delivered it, having denied having possession of it, that diligent and bona fide search required by the law, and which is requisite to lay the foundation for the admission of secondary, evidence, was not made. Godier vs. Lake, 1 Atk. 446 ; Lord Petertereugh vs. Mordant. 1 Mod. 94; Starkie’s Ev., 1 vol., p. 229; Floyd vs. Menting, 5 Rich. L. R. 373 ; Philip’s Ev. 256.
    It is also submitted that, when sufficient evidence has been given of the loss of the deed, it must be proved to be genuine, its execution must be proved according to the nature of the instrument; if a deed, by means of an attesting'witness, or by proof of his handwriting if dead, or that of the obligor if the deed be not attested. Starkie’s Ev., 1 vol., p. 303; State vs. McOoy, 2 Speers, 714.
    2. The alleged copy of the supposed deed, which the witness Thornhill was allowed to read to refresh his memory, was prepared by one of the counsel of the plaintiff, and was in his handwriting; and it is submitted that the presiding Judge erred in allowing the witness to read the same; the rule, as appellant submits, will not allow a witness to aid or revive a halting or defective meinory, by recurring to any other memoranda of the supposed facts, except such as were made either by himself or with his privity and known to be correct, and also such as were made contemporaneously with the facts — and certainly excludes from the witness all such as were made for the occasion, either by the plaintiff or others.
    In support of the position, that the memoranda should be made by the witness himself, and be contemporaneous with the facts, or by another with his privity, when the facts were fresh in Ms memory, tbe following authorities were cited and commented on. 1 Starkie’s Ev. 155 ; Tanner vs. Taylor, 3 T. E. 754; Jones vs. Stroud, 12 E. C. E. 313; S. C. 2 C. & P. 196 ; Steenhiller vs. Newton, 38 E. C. E. 86; Ballard vs. Ballard, 5 Eicb. 499 ; State vs. Bawles, 2 N. & M. 331.
    In support of tbe position, that tbe memoranda must be made by witness himself and not by another, tbe following authorities were cited in addition to those cited in support of the first position taken under this ground. Doe vs. Perhins, 3’T. E. 749, 753; Bex vs. Duchess of Kingston, 11 St. T. 255; Starkie, 1 vol. 156, note; Megoe vs. Simmons, 14 E. C. E. 457; S. C. 3 C. &P. 75.
    3 and 4. The testimony of the witnesses, especially Thorn-hill, Berry and Mrs. Kennedy, was examined and it was contended that it did not justify or sustain the verdict for the plaintiff.
    
      Moses contra cited,
    18 Eng. 0. L. E. 273 ; O'Neil vs. Walton, 1 Eich. 234; 7 Peters, 100 ; 1 Eich. 144.
   The opinion of the Court was delivered by

Whitner, J.

The appellant complains that secondary evidence of the contents of an original deed was admitted upon insufficient proof of its loss. This, as is well known, was a preliminary question for the Court, and to be resolved in such way as shall best promote the ends of justice, and guard against fraud and imposition.

There are certain general propositions bearing on the question sufficiently familiar to the profession, and to be found collected by most of the text writers on evidence. Their proper application will so much depend on the peculiar circumstances of each case, that but little instruction would be derived from any attempt to embody them in an opinion. A Court of review can do little else than see to it, that these rules have been observed.-

For instance, the law demands in this, as upon other questions, the best evidence to be offered of which the nature of the case admits, and which it is in the power of the party to produce. In the case of Deumas vs. Powell, 3 Dev. 104, ‘it was held that though not bound to furnish the strongest possible assurance of the fact, yet the party should give all the evidence reasonably in his power. In the case United States vs. Doebler, 1 Bald. 519, it was held, that if by reasonable diligence the original could have been produced, secondary evidence is not admissible. Gxeenleaf, sec. 558, has the rule, that, in. gneral, the party is expected to show he has in good faith exhausted, in a reasonable degree, all the sources of information and means of discovery which the-nature of the case would naturally suggest, and which were accessible, to him. The specific objections were mainly rested in thA argument of this branch of the case, on the want of a diligent search for the paper, and proof, that it was, in fact, genuine. But we are of opinion the evidence satisfies what the law requires on the preliminary question made to the Court. If any doubt has been entertained upon - the proof then before the judge, that doubt must be entirely removed by the sequel in the testimony clearly corroborated by the verdict of the jury.

This was á case in which there wa,s no conceivable motive for the suppression of the original deed by the party desiring to set it up, and not the slightest pretence of any default on his part, as the whole case clearly shows. The witness, Seaborn Berry, having removed from the country long since, proved that he had not taken the paper with him, that he had in his possession very few papers of any description, and he could say, positively, this paper was not amongst them. That he had left it in the hands of the defendant, or with tbe attorney of one wbo it seems was engaged in litigation, wbexein, for tbe protection of bis interests then in controversy, it was necessary to set up this paper. Tbe defendant, on notice, denied that it was now or ever bad been in bis possession, though, in fact, it bad been left with bis counsel, and was not now in their possession. It is true, one of tbe counsel believed, that after the trial in that case, be bad delivered it to tbe same witness, Berry; yet it will be seen, tbe fact was not asserted, nor was it certainly ascertained — under tbe circumstances, where should a further search have been made, and what could it have disclosed beyond what was ascertained with reasonable certainty, that tbe paper was not then in tbe possession of either of tbe former custodians. In reference to tbe genuineness of tbe paper, in such a case as tbe present, there is much reason for tbe relaxation of tbe ordinary rules applying to tbe proof of execution. Many years bad elapsed — tbe subscribing witnesses were all dead, tbe paper bad been formally delivered in tbe presence of tbe party alleged to have made it, without objection on bis part, and against whom it bad been doubtless used as a genuine paper.. But as has been already intimated, this preliminary evidence was greatly corroborated by subsequent proof, that instructions bad been given by tbe party for its preparation, that it bad been accordingly prepared, and after execution, bad been deposited more than thirty years ago for safe-keeping and delivery; and that tbe delivery was, in fact, made in tbe presence of other witnesses called to tbe fact, and of tbe party himself without objection.

Tbe second ground of appeal complains that tbe witness was permitted to read an alleged copy made by another person, in order to refresh bis memory.

We do not understand that such a question was raised on tbe circuit, or rather so presented as to render necessary any judgment of tbe circuit Judge. As a fact, we are informed by the report, that after glancing at the paper, at any rate, not reading it carefully or entirely, the witness undertook to give the contents of the original deed from memory.” It was alleged in argument, and seemed to be conceded on the other side, that though the paper was before the witness in the manner reported, yet as soon as objection was made, the paper was withdrawn; and on his cross-examination it was, that he was required to read, &c. The authorities, cited by counsel, fully sustain most of the general propositions insisted on in argument. It must be observed, that in this instance, as strangely as it may strike any one, the witness professed to speak from memory as to a fact, derived in a particular way, the reading of the original deed in his presence. It cannot be that the paper in question was so read by the witness, an illiterate man, as to refresh his memory when on the stand, or in any way lead him to the answer indicated. In declining to entertain this ground, therefore, we might rest upon the attendant facts. But the rule is very clearly laid down in Greenleaf, sec. 436, and 1 Philips, 289, n., that though a witness can testify only to such facts as are within his own knowledge and recollection ; yet he is permitted to refresh and assist his memory, by the use of a written instrument, memorandum, or entry in a book; and it does not seem to be necessary that the writing should have been made by the witness himself, nor that it should be an original writing, provided, after inspecting it, he can speak to the facts from his own recollection. The adjudged cases are so fully collected by these writers, and in the notes appended, as to render unnecessary a further reference. The certified copy, it may be remarked, was neither offered nor admitted in evidence, because it was not such a paper as was required by law to be registered in that office.

In reference to the third ground of appeal, it has been already intimated that the testimony of the witness, according to bis own affirmation, was altogether remarkable. It involves a question peculiarly for the jury, and finding, as we do so much to corroborate the fact disclosed by this witness, derived from other sources, that we could in no way justify ourselves, in sending the case back upon this point. The contents were referred to by other witnesses, though in more general terms. It was a paper that had seen the light in that very community where this investigation has been had, and had been in the hands of very intelligent persons, who doubtless could and would hav.e been called if there was reason to apprehend that this was a device and fabrication. There" is still less on which to rest the fourth ground of appeal. The amount fixed upon by the jury, was well authorized by the testimony. Though it has fallen upon this defendant, under adverse circumstances, if it be true, as was shown, that with his eyes open as to the hazard he encountered, he chose to rely that a day of reckoning was not likely to come, he may be regarded as a proper subject for a full measure.

The motion for a new trial is dismissed.

O’NeALL, WARDLAW, WITHERS, GrLOYER and Munro, JJ., concurred.

Motion dismissed.  