Hill v. Barney

Parker, C. J. The evidence of the loss of the instrument declared on was addressed to the court, and the [609] objection that the witness was interested cannot avail, so far as the testimony went to show the loss, for that reason. A party may prove the loss of the instrument. The existence of the instrument, as a ground of action against the defendant, is a matter for the consideration of the jury, after the evidence of the loss has entitled the plaintiff to introduce secondary evidence; and upon the trial of that question the ordinary rules in relation to the interest of witnesses apply. This distinction between the rules governing the evidence of the loss of an instrument, and those which govern the introduction of the evidence upon the trial of the issue before the jury, to show that notwithstanding the loss of the instrument the debt still subsists, seems not to have been adverted to in this case, probably because of the intimate connection here between the evidence of the loss and the proof of the debt. The note having been described in the declaration, and no notice having been given at the first term of an intention to dispute the execution of it, if the note had been produced at the trial the signature of the defendant would have been held to be admitted, under the rule of the court to that effect. It is argued that the rule applies only where the instrument is produced, but the reason of it seems to be equally strong when the plaintiff, by proof of the loss of the instrument, entitles himself to offer secondary evidence. Proof of the existence of an instrument such as is described in the writ, under such circumstances as to show that it furnishes an existing cause of action, is equivalent to the production of it. But it was necessary for the plaintiff to give such evidence to the jury, and here the proof of the loss comes in again, in connection with the evidence of its existence in the hands of the attorney, and to show the reason why it was not produced. If the witness had been interested, the objection here would have been fatal. His testimony [610] went to show the existence of a paper purporting to be a note, such as is described in the declaration, when the writ was made, and how it went out of his possession, so that he could not produce it. The evidence proved the existence of a paper which, if it had been produced, would have been original and competent evidence to sustain the action,— the rule giving effect to it as the promissory note of the defendant. But the case does not show that the witness had any interest. The only evidence which connects him with the note is his own testimony, and that does not tend to show that he is liable for the loss of it. There is no evidence of negligence. It is unnecessary to consider whether, if the loss had been under such circumstances as that he might have been answerable for negligence, that would have constituted such an interest as would have excluded his testimony. An indirect and contingent liability is not sufficient. 18 Me. 49, Marwick v. Georgia Lumber Co.; 2 Watts & Serg. 190, Irvine v. Lumberman’s Bank. If it had appeared in this case that the note when lost was indorsed in blank, that would not debar the plaintiff from a right to recover at law, although it might have been a ground for staying proceedings until the plaintiff should file a bond to indemnify the defendant against any claim upon the note in the hands of a bond fide holder. It has been supposed that the loser of a note so indorsed can have relief in equity only. But if there is no known holder of the note, who can be made a party to the suit ,in equity, so that his claim could be settled in the same suit, there seems to be no necessity for requiring the party to file a bill. Tbe judgment, in an action at law, upon the filing of a bond of indemnity,- is as appropriate a measure of relief as any that could be granted by a court of equity, under such circumstances. If it be said that the court of law has no power to decree that the plaintiff shall file a bond of indemnity, the answer is that [611] such court can stay proceedings until it is filed, or it appears that it is not necessary for the security of the defendant. But in this case, as the evidence stands, the note was not indorsed. No person can claim it as a bond fide holder against the plaintiff. Judgment on the verdict.