
    Dean against M'Pherrin.
    In Error.
    ERROR to the Common Pleas of Huntingdon county.
    The defendant in error, plaintiff below, bropght an action on the case against Dean. The declaration contained four counts. The first count stated, that the plaintiff had in his possession a certain bond or writing obligatory with the proper hand of a certain John M'-Cracken, signed with his seal, sealed and dated the 23d day of March, 1795, by which the said John promised to pay to the said Andrew M'-Pherrin the sum of thirty pounds nine shillings and three pence, on the 1st May, 1797: and in consideration that the plaintiff would procure a release to the defendant, of the right to certain lands, the defendant promised to pay the said bond. The second count stated, that the defendant, in consideration that the plaintiff would sign such a release, undertook to pay and content the plaintiff “ for tzvo bonds he had in his posses- “ sion, executed by John M'-Cracken to him, the said Ari- “ drew p1 and that the plaintiff did release. The third and fourth counts stated a promise by the defendant to pay the plaintiff two hundred dollars in consideration of suGh release.
    Where the declaration states a promise by the defendant to pay the plaintiff two bonds he has in his possession, executed by a third person, on the trial the bonds most be produced, or they must be proved to ‘be lost or destroyed.
    
      Query., If,, after a verdict^ the Court would presume, that they were pra* duced ?
    
      Much evidence was given at the trial; but it was applies-. ble to the second count only. The bonds mentioned in that count were referred to in the evidence, but were not produced : nor was any account given of them. The defendant prayed the Court to charge the jury, that the plaintiff not having produced in evidence the obligations set out in the declaration, could not recover. But the Court charged, that it was not necessary to support the action, that the bonds should be produced and proved on the trial. An exception was taken by the defendant to the charge of the Court, and-they sealed a bill of exceptions.
    
      S. Riddle and J. Riddle, for the plaintiff in error. Huston, contra.
   Tilghman C. J.

M'Pherrin the plaintiff below brought his. action on the case against Dean on a special assumpsit. The first count is founded on the defendant’s promise to pay the plaintiff the amount of a bond in which a certain John, M'Cracken was bound to the plaintiff in the sum of 30/. 9s. 3d. lawful money of Pennsylvania. The second count sets forth, that the defendant promised to pay to the plaintiff “ two bonds which he, the said plaintiff, had in his possession exe- “ cuted by the said John M1-Crac ken, to him," (without mentioning the date or amount of either of the bonds.) The third and fourth counts are upon promises of the defendant to pay to the plaintiff the several sums of two hundred dollars lawful money of the United States. The plaintiff’s evidence went to the proof of the second count only, but the bonds referred to in that count were not produced, nor was there any proof of their being destroyed or lost. Upon this the counsel for the defendant prayed the Court for their opinion, that the plaintiff ought not to recover, but the Court were of opinion, that it was not necessary to produce the bonds.

The declaration was drawn very, loosely, to say the least of it, in not describing the bonds with greater certainty. After a verdict we might perhaps presume, that this defect was remedied by producing the bonds on the trial. But it now appears they were not produced, and therefore the jury were precluded'from the proper-evidence to enable them to find a verdict. There are many reasons why the production of these bonds was indispensable. They were the evidence which the nature of the case required. It might have appeared by re-' ceipts, indorsed upon them, that part of the money had been paid. And the withdrawing of them gives rise to a suspicion, that they may have been satisfied by McCracken, the obligor, and delivered up to hion. This is a stronger case than an action on a promissory note, where, although the defendant suffers judgment to go against him by default yet, the note must be produced before the jury of inquiry, who are to assess the damages. Then the declaration sets forth the date of the note, the amount, and the time of payment. Here all these circumstances are omitted. I see not how it was possible for the jury to assess the damages in this case with any degree of certainty; whereas, had the bonds been produced, all would have been clear, so far as related, to the amount to be recovered. Whether the promise to pay those bonds was proved, is a matter with which we have nothing to do. After the verdict we must suppose that it was proved, and therefore, I am sorry to be obliged to send this case back for another trial. Whether it may eventuate in a similar verdict, with increased costs, is for the defendant’s consideration. But he has a right to insist on the law. I am of opinion, that error appears on the record, and therefore, the judgment must be reversed, and a venire de novo awarded.

Ye ates J. absent.

Brackenridge J. concurred.

Judgment reversed, and a venire de novo awarded.  