Folsom's Executors v. Scott

The opinion of the Court was delivered by Mr. Justice Heydenfeldt. Mr. Justice Terry concurred.

Upon the first assignment of error, the judgment must be reversed.

The rule laid down in Greenleaf on Evidence as to the predicate for the admission of secondary evidence of a lost paper, requires “ that a Iona fide and diligent search has been unsuccessfully made for it in the place where it was most likely to be found;” and further, “ the party is expected to show that 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.

It appears from the evidence in the record that the deed, whose loss [462]was supplied, by secondary evidence, was most likely to have been either among the papers of Folsom in the hands of his executors, or among those of his attorneys to whose custody it appears by an affidavit made by him in his lifetime, he consigned it.

Van Winkle, one of the executors of Folsom, testifies that he searched among Folsom's papers for it, and did not find it. This was insufficient. He should have sworn to a bona fide and diligent search. He may have made a careless and indifferent one, and yet his statement would be true.

Peachy, one of the attorneys to whom Folsom's affidavit says the deed was delivered, testifies that in the fire of 1851, his library and papers were consumed by fire, except a few papers “ which were preserved in a safe." It is not pretended that any search was made among the papers thus preserved for the missing deed, and yet it is apparent that the safe was the most likely place where a paper so valuable would be kept; and further, there is no statement that it was not kept in the safe. We have had occasion to decide the same principle as is involved here, in McCann v. Beach, 2 Cal. R., and in other subsequent and unpublished cases.

Judgment reversed and cause remanded.