
    J. Montgomery, Executor, et als. v Routh and Williams.
    An unofficial copy of a power of attorney may be given in evidence, where the party offering it, cannot procure the original.
    from the late District Court of Concordia, Gurry, J.
    
      S. L. Johnson, for plaintiff.
    
      Stacy & Sparrow, for defendants and appellants.
   Mobpuey, J.

The defendants are sued as endorsers of a promissory note of $9,807 39, drawn at Jackson, Mississippi, on the 12th of December, 1837, by George Mmane, John Long, John A. Grimbull, and Gha/rles Lynche, to the or" der of, and endorsed by, Shipp, Ferriday S Go., and paj^able on the first of January, 3839, at the Agricultural Bank of Mississippi, at Natchez; the note was placed for collection in the Planters’ Bank, at Natchez, and regularly protest-ted; the Justice of the Peace who made the protest, gave notice of it to the defendant by leaving letters containing such notice, with William Ferriday, their agent, at his counting-house, at Natchez, there was a judgment of non-suit below, from which the plaintiffs appealed.

The endorsements sued on in this action were given by William Ferriday, under the same powers as are mentioned in the case of The Commercial Bank of New Orleans v. those defendants just decided, the same interrogatories were put to them and the same answer made ; for the reasons given in that case, we conclude that William Ferriday was duly authorized to make such endorsements.

It is urged that the notices left with William Ferriday, are bad, because an agent is not competent to receive notices unless power to that effect is given him, and that the powers of attorney annexed to the plaintiffs’ petition confer no such power, and we have been referred to the cases of Mantillet v. Duncan, 11 M. R. 534; and The Louisiana State Bank v. Ellory, 4 N. S. 87. It is not necessary to inquire in this case, whether the authority to receive notices of protest may not be fairly deducible from the comprehensive powers given to Ferriday to do all the banking business of his principals, because the plaintiffs have exhibited other powers executed in Mississippi, on the 21st of April, 1837, in which the defendants authorize their agent to do in their names, with the Planters’ Bank of Mississippi, a number of transactions therein enumerated and (among others) ‘‘to receive and acknowledge notices of protest of all or any bills of exchange, drafts or promissory notes, and to do and to perform all such other acts as may bo necessary in transacting our business with the said institution.”

To prove those last powers, the plaintiffs offered in evidence copies of the original, which are private documents lodged in the Planters’ Bank, in Mississippi, and proved, by the cashier who was examined under a commission, that he could not part with the originals which belonged to the bank, that they were sigped by the defendants, and that the copies which he annexed to his answers were correct copies of such originals, and they further proved the death or absence of the subscribing witnesses; this evidence was objected to on the ground that the originals should have been produced, as they were not alleged to be lost or mislaid, but on the contrary, were shown to exist. The Judge admitted the copies, and defendant took a bill of exceptions. The Judge below did not err. The rule is, that a party is not obliged to produce the very best possible evidence of the fact to be proven, but the best in his power and under the circumstances of the case. The best evidence of the contents of a written .instrument consists no doubt in the actual production of the instrument, but when the impossibility of producing it has been shown to the Court, secondary evidence must be admitted. 1st Starkie, on Evidence, p. 282. In the present case, the paper is beyond the control of the process of our Court, and the party can do no more than prove its contents.

It has been finally argued that the power is to transact for the principals the business therein mentioned with the Planters’ Bank, of the State of Mississippi and not with the plaintiffs; that the note sued on, never did belong to that Bank who merely held it a short time for collection; to this it is a sufficient answer that as the Planters’ Bank had undertaken to collect this note, the protesting and giving notice of the protest to Routh and Williams, was part of the business which the Bank had with these persons.

There is an admission in the record that the note bears eight per cent, interest per annum by the laws of Mississippi.

It is therefore ordered that the judgment of the District Court be reversed, and proceeding to give such judgment as in our opinion, should have been rendered below, it is ordered and decreed that the plaintiffs do recover of, and have judgment against, the defendants, in solido, for §9,807 39, withjinter-est thereon, at the rate of eight per cent, per annum, from the fourth of January, 1839, until paid, with costs in both Courts.  