Coleman v. Wolcott

Swift, J. This was an action on a covenant; and the plaintiff alleged that the deed on which the action was brought was lost. The court admitted the plaintiff, on the trial of the cause, to make affidavit of the loss of the instrument. After verdict, the defendant moved for a new trial on that ground; and the question is, whether it is competent for the plaintiff to testify to the loss of an instrument on which his action is brought, and which is averred to be lost. Anciently, when written instruments were lost, or destroyed by time or accident, the remedy was in chancery ; and for some time, there was a diversity of opinion whether a court of law could dispense with a firofert. But [394] the point is lifivr'settled in England, and has been recog-' *ere, that in such cases the plaintiff may allege that the iri&trument has been lost, or destroyed.by time or accident, which will excuse him from laying ⅛ profert of it. This is a practice of modern date, and the rules with respect to the proof of loss have not yet been clearly settled by a course of judicial decisions. In this state it has been understood, that the question of loss was a preliminary fact to he decided by the court to enable them to determine whether the copy shall be admitted in evidence, or proof of the contents be given to the jury, and not as proof to the merits of the case ; similar to the proof of the absence or death of a subscribing witness to an instrument, in order to let in other proof; and on the authority of the practice in the state of Pennsylvania, as stated in 2 Dallas, 116. the court below admitted the plaintiff to swear to the loss of the instrument on which this action is brought. But the loss or destruction of the instrument is not a preliminary question; it is a material and traversable fact; and if the plaintiff cannot prove it, he cannot maintain his action. It is a well known principle, that in actions founded on specialties, the written instrument must be produced on the trial, unless excused by the loss or destruction, or by being otherwise out of the power of the plaintiff; which fact must be alleged in the declaration. If the plaintiff should fail to prove that fact on the trial, he would not be entitled to recover in that form of action ; but it not appearing that the instrument was lost or destroyed, his only remedy would be by an action founded on the instrument in which lie must lay a pro-fert, and produce it on trial. So that it appears, in an action on a specialty stating it to be lost, the loss is an essential fact to be proved to the jury. That the loss or destruction of an instrument is a material fact, is inferrible from the case of Read v. Brookman, 3 Term Rep. 151. the first ease in which the doc [395] trine respecting the mode of declaring on writings lpst or destroyed was explained, and established; though the practice had previously prevailed. In the case of Beckford v. Jackson, 1 Esp. 337. the allegation that the deed was lost, or mislaid, is traversed. As the loss or destruction of the writing in question was a material fact to be decided by the jury, it was not ' competent for the plaintiff to testify to such fact; because it is repugnant to that fundamental rule of evidence, that no man shall be a witness in his own case. I am therefore of opinion, that a new trial ought to be granted. In this opinion the other judges severally concurred. New trial to be granted.