#### BURRIDGE v. THE GEAUGA BANK.

Bank notes burnt — evidence—party may swear to the loss, but not the contents — recovery on lost paper.

A person holding bank notes which he alleges have been burnt, cannot prove his declarations at the time of the fire, to establish the loss.

Nor can such person be admitted to prove he had a bundle of notes on a bank which were burnt, state their general amount as the foundation of his recovery.

A party is sometimes admitted to prove loss of a paper to Jet in other evidence of its contents.

A party cannot recover for the amount of negotiable paper, without producing or identifying it, so that the maker may know if he has already paid it, or protect himself against future payment.

Assumpsit to recover the amount of certain Geauga bank notes which had been destroyed by fire. Plea non assumpsit.

It appeared in evidence, that in June, 1832, the plaintiff had a bundle of Geauga notes, which from the labels, &c. were judged to amount to about $400. That about three weeks after-wards, his store was discovered to be on fire in the second story; when alarmed, he removed out a box and trunk of papers from below, and attempted to go up stairs, but was prevented by the fire.

It was offered to prove that the plaintiff then said his money was up stairs, and burnt.

*P.*Hitchcock,

objected.

*J. H. Paine,*contra,

contended his declarations at that time were part of the res gesta. He cited *5 Conn. R. 574;*9 *Wheat. R.*581; 6 *Wend. R.*379.

*J. H. Paine.*

I then offer the plaintiff as a witness to prove that he had $450 'of the Geauga bills, though he cannot tell the date, amount or numbers, which were burnt.

Wright, J.

The evidence is inadmissible. To admit it would allow a rogue to set fire to some box, papers, &c. and by simply declaring that he had burnt a note upon an individual to make that eviidence of the existence and destruction of the note, upon which to recover.

Wright, J.

The party cannot be a witness in his own case. From necessity he is sometimes admitted to the Court, on the preliminary question as to a paper being lost, in order to open the door for lesser proof than the paper or its contents. Here you propose to prove by the party the existence of the bills, their destruction, and general contents, as to amount only. It is not proof of a collateral preliminary fact, but of the main facts in issue. It is urged upon the ground of necessity, though the necessity is of a kind within the power of a party to create at his pleasure, when he inclines to make himself a witness in his own case. It would open the door to rank injustice, so to change the law of evidence.

*689But, upon another ground, it is doubtful, whether such testimony from a competent witness would be receivable in this case. The claim is, that the defendants were indebted to the plaintiff on a number of small promissory notes, that are negotiable and obligatory upon the defendant into whosever hands they may fall. The defendant’s rights are to be regarded as well as the plaintiff’s. You cannot describe the notes — you fail to make it certain what notes were lost; and if, for instance in this case, they were purloined by a thief, who fired the store to favor his escape; or, if they have been put in circulation by the defendant, and the bank should now pay, they would hereafter be compelled to pay the holder on presentation; or, if, in fact, the bank have already paid them, it must lose. How are their identity to be ascertained, either to defend this claim, or recover of the plaintiff hereafter, if presented? A party ought not to be subjected, unless he is certainly liable, and exempt from future liability. We think the evidence too loose and uncertain in its character to be received.

The plaintiff submitted to a nonsuit, w.ith leave to move to open it up, but abandoned it.