
    MARCH TERM, 1796.
    PRESENT, MCKEAN, CHIEF JUSTICE, SIIIPPEN, TEATES AND SMITH, JUSTICES.
    David Lenox, who survived Joseph Jacob Wallis, administrators de bonis non of John Lukens, administrator of Jesse Lukens, against Eleanor Dehaas and John Philip Dehaas, executors of John Philip Dehaas.
    An executor defendant is a competent witness to prove the state of papers offered in evidence, when he found them, and where they were found, from the necessity of the case. But papers purporting to be cancelled bonds, cannot be received in evidence without proof that they once existed as bonds.
    Covenant on articles of agreement made between the intestate and testator, dated July 25,1775, whereby the former conveyed to the latter, four tracts of land on both sides of Bald Eagle creelc, containing 1000 acres, in consideration of 1501. paid in hand, and 175Z. to be paid on the 25th July 1776, and 175i. to be paid on the 25th July 1777. It was further stipulated, that the expenses of patenting the lands should be deducted out of the purchase money. The breach assigned, was the non-payment of the two latter sums.
    The defendants, under the plea of payment with leave to give the special matters in evidence, offered two writings to the jury purporting to be cancelled bonds from the testator to the intestate, the one payable on the 25th July 1776, and the other on the 25th July 1777, each for 175?. and to show that the same were found by one of the defendants among the testator’s papers, inclosed in the articles in their present state.
    The writings were connected together, on the same sheet of paper, and though the seals remained, no part of the signatures of the obligor, or of the witnesses could be traced thereon.
    This testimony was excepted to by the plaintiff’s counsel.
   And per cwriwn,

the executor is a competent witness to prove the state of the papers when he found them, and where they were discovered, from the necessity of the ease. He is merely called to a collateral point before the court, to introduce the papers to the j ury. But to show the writings in evidence, it must previously be ascertained that they once existed as obligations. On the face of the writings, it would rather appear, that they had never been executed, asno vestiges of subscription either by Dehaas or the witnesses are t.o be found; and it having been agreed, that Lukens should be at the expense of patenting the lands, it is not probable, that Dehaas would have paid the full consideration mbney, unless he had obtained some engagement that those expenses' should be paid by Lukens. Where bonds have been given at the time of the' execution of articles, the execution of the bonds is usually recited, or an acknowledgment of the receipt of the consideration money is inserted therein. There being no proof here, that the papers ever existed as bonds, they cannot be received in evidence.

Mr- Lewis, pro quer.

Messrs. Ingersoll and S. Levy, pro def.

"Verdict quer. for 7521. 4s. 2d. damages.  