#### Micajah T. Cotton *v*. Thomas Beasley.

From Warren,

’Proof of lost bond. In an action at law upon a bond, the Plaintiff shall not be admitted to prove the loss. He may prov.e the loss by disinterested witnesses, but he shall not be heal’d in his own behalf, unless the Defendant can aleo be heard. This can only be done in the Court of Equity ; and there, if a decree be made for the Complainant, the Court can compel him to indemnify the- Defendant against the lost bond.

This was an action of debt on a bond for fifty dollars, claimed in consequence of the Plaintiff’s having won a race, made and run pursuant to certain articles. The Plaintiff deposed, that the bond was not in his custody or possession, that it was deposited in the cilice of the Clerk of the-County Court, and he had made repeated applications for it, and could not procure it. This mode of proving the loss of the bond was objected to by the Defendant, but admitted by the Court. The Clerk of the County Court swore that he had searched for the-*260bond in vain, and he believed it was not left in his office,' A witness then swore, that a bond for fifty dollars, payable either on demand, or when the race was to be run, was staked in his hands, by the Plaintiff and Defendant, to be delivered to the winner of the race: That a. parol agreement to run a race was made between the Plaintiff and Defendant, and some time afterwards, the articles of the race were executed in consequence and in pursuance of this parol agreement, and were signed by the parties *fin*the day they bore date, and were attested by him. The giving of these articles in evidence, was objected to by the Defendant, but admitted by the Court. They set forth that the distance to be run was a quarter of g mile.

There was no evidence that the distance ran, was ascertained to be a quarter of a mile; but it was proved that immediately after the race was run, the defendant, acknowledged that he had lost it, and that the bond was delivered by bis direction to the Sheriff.

Upon this latter evidence, it was left to the Jury to decide, whether the distance run was a quarter of a mile; but the Court did not instruct the Jury that any measurement of the distance ivas necessary to be proved..

Tiie Court instructed the Jury, that no parol evidence was admissible to connect the bond with the agreement ; *.*that they must look into the agreement, and consider the description of the bend given by the stakeholder, in order to decide whether the bond declared on, be the one. which was staked in pursuance of the articles, to sefcurc the money bet on the race: that having decided this point, they would consider whether the race was run according to the articles, with respect to distance, time, and circumstances ; and whether it was run fairly and according to the usages of racing.

The Jury found a verdict for the Plaintiff; and a rule for a new trial being obtained and sent to this Court;

HaxoGi, Judge,

delivered the opinion of the Court:

*261' íí has been objected that parol evidence should not be introduced *to*prove the contents of the bond, because the act of Assembly on this subject declares, “ that on every trial, an obligation for the amount of the money, &c. bet, shall be. produced.” That is true, and the legislature no doubt had it in view to compel parties to produce evidence juf higher dignity, as to racing contracts, than before by the rules of law was requited. But before that act passed, if the sum bet had been secured bjr a written obligation, it was incumbent on the Plaintiff to produce it. In all cases, it is necessary to produce the instrument of writing on which a suit is brought 3 and this can bo dispensed with only, where it appears that the instrument has been lost by accident. In such..: case, the production of it is-impossible, and the Plaintiff may give evidence of its contents. So with respect to the bond in question, the act requires it to be produced 3 but if satisfactory evidence-of- its loss by accident be given, pa-rol evidence of its contents may be received.

It lias been objected that the articles should not be received in evidence, because the contract which they set forth, was made some time prior to the date of the articles. Whilst the contract was iri parol, it was a nullify ; when reduced to writing-, it became such a contract as the act of Assembly required, and it was properly received in evidence.

So far the Superior Court acted correctly3 but it appears from tiie case that the Plaintiff himself was introduced to prove the loss of the obligation. ' It is a very general rule, that a party shall not be a witness in his own case3 and any exception to the rule must be founded in necessity. It is true that the party himself is very frequently the only witness of the loss of a paper, and if there could not be a remedy for him without the aid of Ms own testimony, it ought to be received from the necessity of the case. In answer to this, it may be observed, that in such a case a party has a remedy in the *262Court o'' Equity, where he will be at liberty to swear to the loss of the *obligation;*and where the Defendant will also be at liberty to make any answer he pleases, Up0n oath ; and where, if a decree be made for the Com-* plainant, it will be upon condition that heenter into bond to indemnify the Defendant against any demand which may be made against him, in consequence of such lost bond. It seems not to be rigid, that the Plaintiff shall be permitted to become a witness at law, and not the Defendant. Suppose the Plaintiff swears at law that he lias lost the bond j the Defendant will not be permitted to swear that he has paid it, taken it up and destroyed it. The parties ought to stand upon equal grounds. In, Court of Equity, they will both be heard upon oath. The Plaintiff can require no mare, than that he may proceed at law, if he can make out the loss of the bond by disinterested witnesses. If he wishes to become a witness in his own cause, let him bring his suit in Equity. Let a new trial be granted.