Sims v. Sims ( 1818 )

The opinion of the Court was delivered by

Mr. Justice Nott.

In order to let in parol evidence of the contents of a written instrument, proof of its existence and loss must first be given. There was sufficient evidence of the existence of the note in this case; but there was no evidence of the loss. The witness, to be sure, said he examined the plaintiff’s papers, and could not find it. But that was no evidence of its loss. It might have been in his pocket; it might have been paid ofi^ and taken up. The oath of the plaintiff was offered to prove the loss. But that question has-been long settled by a solemn decision of this Court. In the case of Ross and M-Cartan it was determined, after two full arguments, that a party, interested in a cause, could not be a witness, to prove the loss of a paper essential to the issue.

oantt,contra.

The motion must, therefore, be refused.

Grimke, Colcock, Cheves, and Johnson, J. coni curred.