Richards v. McGough , 122 Pa. 547 ( 1888 )

Opinion,

Mr. Justice Clark: :

A preliminary injunction was awarded in this case on March 80, 1888, with leave to the defendant to move to have it dissolved on five days’ notice. A motion to dissolve having been made, and notice given, the parties met for argument of that motion, April 9, 1888, when a continuance was had, at the instance of the plaintiff, for the purpose of taking testimony to be read at the hearing, and a “ commissioner ” or examiner was appointed for that purpose. On June 8, 1888, the report of the examiner was filed, and on July 2, 1888, the opinion of the court was filed, and the decree entered. An answer would appear to have been drawn, under oath, on April 7, 1888, but it does not appear when it was filed, whether before or after the decree, or, indeed, whether it was filed at all. The decree is in the form of a filial decree, but, as the testimony was taken and the argument had on the motion to dissolve the preliminary injunction, the action of the court thereon was presumably intended as an order for the continuance of the preliminary injunction until final hearing.

What is known as the “ borough of Ebensburg ” was originally incorporated by special act of assembly, of January 15, 1825, under the corporate name of the “ burgess and town council of the borough of Ebensburg.” It is alleged on part of the plaintiff, however, that, upon proper application of the said borough to the Court of Quarter Sessions of Cambria county, in the year 1857, the “ burgess and town council of the borough of Ebensburg ” became, by the decree of said court, subject to the restrictions, and possessed of the powers and privileges, conferred by the act of April 8, 1851, known as the General Borough Law, but that the proceedings and decree of the said court have been lost or destroyed. At the hearing on the motion to dissolve, the plaintiff attempted to show the execution and loss of this record, and by secondary evidence to establish its contents. To this it was objected that a lost record could not in this way be established by parol; that the record should first be supplied under the provisions of the twenty-sixth section of the act of April 25, 1850, P. L. 573. Whilst doubtless this is the better practice, where there is opportunity to pursue it, there can be no question that after proof of the loss, its contents may be proved, like any other document, by any secondary evidence, where the case does not from its nature disclose the existence of other and better evidence: 1 Greenl. Ev. § 509; Adams v. Betz, 1 W. 425; Harvey v. Thomas, 10 W. 63; Loughry v. McCullough, 1 Pa. 503 ; Farmers Bank v. Gilson, 6 Pa. 51; Miltimore v. Miltimore, 40 Pa. 151; Clark v. Trindle, 52 Pa. 492; 1 Whart. Ev. §§ 135, 136, and cases there cited. In Miltimore v. Miltimore, supra, Mr. Justice Thompson, delivering the opinion of the court, says: “ The existence of the power in the court to supply lost records does not interfere with the rule of evidence which admits proof of contents. The loss may not he discovered until the trial is progressing. There would be no time then to file a bill on the chancery side of the court, to perpetuate the proof necessary for a foundation from which to supply the record; and it might he disastrous to one or other of the parties to delay the cause for such a purpose.”

But, assuming the power of the court in this respect, it must he conceded that the evidence offered was wholly inadequate for the purpose. To authorize memoriter proof of a lost document or record, the witness must have read it, or otherwise have actual knowledge of it, and be able to speak at least to the substance of the contents : 1 Whart. Ev. § 140; Coxe v. England, 65 Pa. 212. The same kind and measure of proof is required as in the case of the loss of other documents. We will not refer to the evidence in this case, nor discuss it. We merely call attention to the character and quality of the proof required, in order that the case may be properly presented on final hearing. The question upon the construction of the act of April 3, 1851, as to the duties and powers of the burgess, under the evidence, is not presented in this case. The testimony taken by the examiner, treated as injunction affidavits, is wholly insufficient. We give no opinion upon the construction of the act o£ 1851, until the question is properly raised for our consideration.

The decree is reversed, and the preliminary injunction dissolved, without prejudice to the right of the plaintiff to proceed upon his bill to final hearing and decree.