Bass v. Brooks , 1 Stew. 44 ( 1827 )

JUDGE CRENSHAW

delivered the opinion of the Court.

The question in this case is, was the evidence of the existence and surrender of the two receipts, sufficient to authorize Bass to prove their loss by his own oath? I take the correct rule to be, that a party who offers bjr his own oath to prove the loss or destruction of a written instrument, must first by evidence aliunde, shew that it did once exist, and this evidence must so describe it as to put its identity beyond a doubt, and then the oath of the party can be received to prove its loss, and the testimony of disinterested witnesses added to shew its contents. It is difficult for a witness to describe an instrument of writing, without at the same time proving its contents ; such testimony would of course be excluded ¡rom the jury, if the party failed afterwards to establish the loss of the instrument. When the paper is of such a nature, as according to the usual course of business should not be in the party’s possession, it should be proved by other testimony, that it came to his possession, before his own oath could be received to establish its loss. It should have been proved, that the receipts in question were delivered up, before the party could prove their loss by his own oath. A part of the evidence went to prove that they did once exist, and to describe and identify them. Another part went to prove that they' were delivered up to Bass. This was sufficient to authorize him to establish their loss by his own oath, in order to let in secondary evidence of their contents. It is the unanimous opinion of the Court, that the judgement be reversed and the cause be remanded.