#### Isaac Mothershed v. James Cliburn.

In an action on a lost note, the plaintiff is incompetent to prove the loss of the note sued on. His declarations are equally incompetent to the same purpose. (S. P. Sims v. Sims, 2 Con. Re'p. 225; Davis & Tarleton v. Benbow, 2 Bail. Rep. 428; Darby v. Rice, 2 N. & M’Cord. Rep. 598.)

*294*Before GANTT, J., at Keréhaw, Spring Term,*1839.

The report of his honor the presiding judge, is as follows:

“ This was a summary process brought to recover a balance due on a note alleged to be lost. As to the justice of the demand on the part of the plaintiff, not a shadow of doubt could exist in the mind of any one. The difficulty was to prove that the note had been lost,-a thing almost impossible to be done. A rumor had existed in the neighborhood that the plaintiff had lost a pocket-book. — • A pocket-book was found, and a man by the name of Tomly, to whom it was delivered, earned it to the plaintiff having heard of the plaintiff’s loss. He told Tomly that the pocket-book found was not his, and stated to Tomly in this conversation how much he had lost in his pocket-book, to wit. f 40. This, from the evidence, appeared to be the amount due on the defendant’s note, given to the plaintiff. Permitting this declaration of the plaintiff’s, with some others, twelve months before, to Newsom, that he had lost his pocket-book with the defendant’s note in it, has given rise to this appeal, on the ground that it was inadmissible to permit the plaintiff’s declarations to be given in evidence. Who else but the plaintiff could tell of the loss? If this decree rested on those declarations alone, as to the justice of the plaintiff’s demand, there would be reason why they should not be received; but where it appeared most clearly in evidence that the defendant, when pressed for money to satisfy executions against him, found a friend in the plaintiff, who advanced him the money and took the note in question for the amount advanced, the plaintiff’s declarations about the loss of his pocket-book with defendant’s note in it, was admissible ex necessitate, to remove all suspicion of its being a trumped up demand on the part of the plaintiff and thereby prevent the defendant from realizing the dishonest plan he had conceived of defeating the plaintiff, (if possible,) from the recovery of a debt contracted under circumstances such as I have related. I attach to this report the testimony which is conclusive, (and strongly so,) as to the right of the plaintiff to demand of the defendant the amount for which the de*295cree was given. I see from referring to my notes, that the defendant had paid a part of the amount of the note, leaving a balance of $15, for which the decree was given.”

The defendant now moved to reverse the decree of his honor the presiding judge, for a nonsuit, or a new trial on the following grounds:

1. That his honor erred in admitting the declarations of the plaintiff, Mothershed, as Jo the loss of the note sued upon, there being no other evidence but such declarations that the note was in fact lost.

2. That even supposing the testimony competent, it was not proved that Mothershed’s declarations related to the note in question : but the testimony left it equally probable that some one of various other notes was referred toby plaintiff

*Withers,*for the motion.

*Smart,*contra.

Curia, per Evans, J.

In the case of Sims v. Sims, 2 Con. R. 225, and Davis & Tarleton v. Benbow, 2 Bail. R. 428, it was decided, expressly, that the plaintiff is incompetent to prove the loss of the note sued on, and in the latter case all the arguments *ah inconvenient!,*are considered by the court. — And if the plaintiff’s oath cannot be received for this purpose, much less shall his declarations be allowed to establish the fact. The general rule is stated in Darby v. Rice, 2 N. & M'Cord. R. 598, to be, that a party to a suit cannot prove his case by his oath or declarations; but that was a case depending on its own peculiar facts, and is considered an exception to the general rule.

This case has been held, in the cases before cited, not to constitute an exception — and the motion for a new trial is therefore granted.

Richardson, O’Neall, Butler and Earle, Justices, concurred.