Smith Thompson

“ Under this head of the objection, it has been argued, that the commission should have been set out or recited in the indictment, or the reason for the omission should appear on the face of the indictment. If there is any ground whatever for this objection (which we are far from intimating) , the point cannot be made here under the question sent up from the circuit court. If well founded, it must be presented in some other form. We are now confined to the question on which the opinions of the judges were opposed, and the sufficiency of the indictment forms no part of that question. ”

“ It is said in the books, that the ground of the rule is a suspicion of fraud, and if there is better evidence of the fact, which is withheld, a presumption arises, that the party has some secret or sinister motive in not producing it. Rules of evidence are adopted for practical purposes in the administration of justice; and must be so applied, as to promote the ends for which they are designed. It has been said, that according to this rule recourse should have been had to the records of the Buenos Ayrean government for a copy of the commission. ”

“ If it should be admitted that a record is there to be found of this instrument, and that on application a copy of it might have been procured, it would be carrying the rule to pretty extravagant lengths to require the application to be made. ”