
    
      NAGEL vs. MIGNOT.
    Appeal from the court of the first district,
    'SVhcthGj ths p laintiff may re. aiiedged^ami be lost, proven returned^ % broker, when there were many persons a-r°™dhim>with evidence that the defendant had given it for a valuable con-had promised opayit
    ⅜ This suit, was brought for the amount of the , defendant’s promissory noté, which was alledg-ed tb be lost. Me pleaded the general issue, nonage and the absence of a regal consideration, There was judgment against him, and he api-
    The evidence consisted in depositions which came up with the record. There was no evi-deuce of the defendant’s nonage, and a legal consideration was proven. All the .difficulty in the case, arose as to the proof, authorising the admission of witnesses* to establish the contents of the note.
    Melas deposed he had knowledge of the note, having received it in collection from the plaintiff. The defendant gave only evasive answers, viz. that all was well ; that the plaintiff would not lase,apy,thing 5 that the note not being to order, he could pay it to him only. The witness returned the note to the plaintiff, at a time when there were many persons, beetucoup de mai&de, in the. shop. Acfew days after, believing, from some late information* that he could obtain some money from tile défeínlaot, he ⅜⅜>-plied fur the note to the plaintiff, who, after a search, could not find it, and informed hip 'it was lost.
    Low deposes he «ever saw the note : at the plaintiff’s request, he called op the defendant, who admitted he had given the note, but not to order,die still owed the money, could not pay it, and would see the plaintiff. This witness does not recollect the precise amount of the note, but believes it to be upwards of ⅜1000.
    Barnett came down from Baton Rouge with the defendant, and deposed he was informed by the latter, lie had an expired note, in the plaintiff’s hands, and came down to make arrangements.
    The plain tiff made affida vit that the note was returned to him by Melas, at a moment when there were many people in the shop,, that Melas laid it on the-eounter, and when the plaintiff searched for it, two or three days after, he could not find it.
    A bill of exceptions was taken to the fading of this affidavit.
    
      Livingston, for the deféftdant.
    The decisioó of this cause depends solely on the construction of the Civ. Code, 31⅜1aid. ¾⅜7, which admits parol proof to supply the contents of a written instrument, “when the creditor (accord ing to the English text) has lost it through a fbrtui-tous event, an unforeseemaccidrnt or overpowering force (in the French) Lnrsqu’il a perdu le titre, par suite i’un pas fortuit, im~ prévu et resultant d,mie force mnjeure. Here it will be perceived that the English text, by using the word or, makes either of the events enumerated a sufficient'reason, to let in the proof; while the French, by connecting them by the copulative et, seems to require that all should' Concur. That is. that the loss must be proved to be the result of a cas fortuit, that this mustbe impveiu, and that it must-result from a force majeure. This is of some im-pdrtgnqe to shew, that in the language best understood by the makers of the code, they restricted the eases, in which parol evidence should be admitted to supply the ailedged loss of a deed. As both texts must be taken together, the greatest extept of enactment in either must prevail, stffcs to reconcile both in the pre? seat instance. The Frénch,reading may be adopted and it includes the English, but the English does not include the French-
    T will therefore take the English, as the text most favorable*» the adverse party.
    H« most proye thenyb^are aay parol proof of the contents could be introduced, 1st, that the . instrument is lost; 3d, that it was lost by a fortuitous event, an unforeseen accident, or an overpowering force.
    First. The loss : this is the foundation on which the introduction of the parol proof must rest. He must prove the Joss; for the next member of the article enforces the first, by declaring that it is not sufficient, if he. merely al-ledges that he has lost them : he must prove the loss. How? I answer, in the same manner that any other fact is proved, by satisfactory evidence, either positive, or. circumstantial, but by evidence. Excluding expressly his own; allegation, that by the words of the law is to have no weight; it is not sufficient if he merely , alledges : there must then, of this substantial fact, be some evidence. On the record, the only circumstance related proves directly the reverse, viz. the note was given to the plaintiff by the witness ; not laid on tke counter, where other persons might have taken it up, but given to him ; not abroad, where be might have lost it before he came home, but in his own house, in his own scene of business, his own shop. It is true, he adds, there were several persons at the time in the shop, but no evidence of any bustle, any hurry, any confusion, nothing out of the ordioa-ry course. Now, this fact, of itself, creates not . i.» . * , ijj.ii the slightest presumption ot loss ; but the law does not admit a slight presumption, even if it existed, of the loss to be sufficient. It must be proved, and so extremely solicitous have the legislature been, that they three times, in oné short article, enforce the necessity of proof. I do not, I repeat, insist that this proof should in all cases be direct: blit it must be such as will induce a presumption of the loss, unconnected with any declaration of the party, which is excluded. Now, because a broker returns a note to the owner in his shop, when there are several persons in it, can any presumption whatever arise that it is lost ? The legal presumption is, that since' it was given to him, he has it still. Yet, this is the only testimony, either direct or circumstantial, positive or presumptive, that appears of the loss. It must, therefore, be by connecting this circumstance with the declaration of the plaintiff (expressly, as we have seen, forbidden by the law) or with the proof afterwards introduced, that we can arrive at a belief even that the note, if it existed, was lost. But no inference ought to be drawn from the other proof, to aid that which was to authorise its introduction ; because evidently, if the first evidence was not sufficient alone, the second ought not to have been introduced. But that evidence throws no light whatever on the proof of loss. It only shews the prior existence of the instru-mant, but this the law declares is not sufficient; it is the loss that must be proved, not inferred from the previous existence of the paper and the declaration of the holder, that he had lost it. If that were the case, they would have dispensed with any other proof, and the present provisions would have been useless. As little stress, it appears to me, ought to have been laid on the defendant’s plea, as containing an implied admission of the existence of the note. Our mode of pleading, where we are required to set out every defence in succession in one answer, obliges practitioners to set up frequently different defences, that would be deemed inconsistent pleas in the common law; such as pleas to the jurisdiction, in abatement, and in chief, a general denial and payment, &c. in the same answer. It is therefore, every day’s practice for the attorney to insert in an answer, every species of defence, that he thinks may serve his client, without fearing that any of them can be used as admissions against him, provided he deny generally the allegations of the plaintiff. A general denial and payment are every day joined, yet strictly, tl«e last is a« admission that the debt had mice existed. But no one has yet thought that such a plea, dispensed with the necessity of proving the debt on the part of the plaintiff. It is true, that in all suits of this nature, much is of necessity to be left to the discretion of the court 'of justice. But this discretion must be limited, 1st, hv the words of the law, where that is cleat; 2d, where the words of the law give room for doubt, by general principles, as established by jurists, and other decisions.
    But here the words of the law are unambiguous; and they are enforced by repetition in different forms. * "■)" *
    There must he a toss, hy fortuitous event, tir overhearing force ; that loss- and that event must be 'previously proved, by other testimony than the declaration of the party ; those are the provisions of the law. Can it be possible that they Cain be said.to be fcotn plied with, mer«dyhy Showing that the note was given to the party at his house,when itere, were several persons ⅛ the ¿com? For thisjs strictly, literally the whole? of ⅛⅜ 'testimony on the pointr every ease toy fee sure stands upon-its own circumstance#, hut every case is more dr less a precedent, or why are they reported; this Case then will heTeaft^ be “S®ceessfeMy quoted t© show that the proof of déiivéCy of a paper to the party- in ⅜⅛⅛ présfOcé of a number of persons, is evidence of its los$ ; and I ask if this does, not change very ma-tei ially the letter and the spirit of the law.
    At was made to relax the wise rule that prohibits parol proof of the contents of written instruments ; but to dispense with it, only in eases where loss by accident, or force, could be clearly proved 5 to dispense with it, when this proof was not clearly made, would be in effect to repeal it, and to introduce the perjury and fraud which that sage provision was intended to exclude. If such slight circumstances, as appear in this case, are (Sufficient to prove a loss, i» what case can. they not be procured ?: A man may have a note, which has defects that will prevent his recovery on it; the defects might be such as would not strike a person, not much .interested, to examine them. It may have a discharge on the back, it may be negotiable, it may be fot IOQO liyres, and a person yvho has seen it cursorily .may think it is for so many dollars, v
    In all these cases, the incorrect memory of a witness is more advantageous to the holder, than the production of the note. He is then en-vite,! by this decision to withhold the note ; to heap it in his pocket: to prove that it was handed to him in the coffee-house, when he was en* gaged in other affairs, .and then he will be pci*-initted to prove the contents by testimony, inferior in its nature to the written : if he fail in this, he may always find his note again and (except the costs of his experiment) be exactly inithe situation he was before. .But this the law forbids ; and therefore insists as a preliminary, that the loss be proved; because secondary proof can only be admitted, where the primary no longer exists, and is lost by accident or force ; to guard against careless or wilful destruction of the written, in order for fraudulent purposes to let in the verbal, proof;
    This is a point of so much importance to the the jurisprudence of the country, that I know I shall be excused if I enlarge or, it, and add the authority of jurists to shew — Secondly
    That, even if the words of the law should admit of a doubt, neither principles of law nor precedents can be found, for admitting the proof, under such circumstances, as are disclosed by the present case.
    First. Let us take the very high authority, Potkier, Obligations, no. 815, quarto edit. He puts,the.case where one has lost his papers, by the pillage , or burning of a house, parmi les quels étoient les billets de ses débiteurs. This, he says, is a casfortuit, which admits the introduction of parol proof. But he expressly adds, that this fact of the burning, or the pillage,of the house toiust first he admitted or proved? Why will this admit the proof ? Because when a house is burned with, its contents, or pillaged of what was in it, and there is pfoof that he used to keep his papers there, there is a strong presumption that the papers Were lost Or consumed. But the burning or pillaging of the house alone would toot be sufficient, if it were proved that he saved his papers, or that “he kept his paspéis in another place., Tto^j burning of4a kitchen Would* be no proof or presumption of'ihe’loss of papers,; because they are !nbt usually kept there. "There must be a probability resulting from the circumstance stated; not a merepossibility. It is possible I may have kept my papers in an outhouse; yet the 'burning of'an Outhouse would raise no probability of my having lost them, even’if I should myself declare they were lost there. It is pos-r sible, that after the plaintiff had received the note from‘the' broker, he may have laid it on the counter'and that it was swept, in The fire.-'But it is also possible, nay it is most probable*that he put it in his pocket. After the delivery to him, there is hb evidence whatever, of any speciesj except his own declaration' and hhs-oWn act in bringing the suit, which ⅛ expressly ex*> eluded as proof, both by the words of out code and the roasoning of Pothipt, in the latter part of the same article : “ if he (says that learned. jurist) who wishes to introduce parol proof, only alledges that he has lost his deed, without proving any fact of inevitable necessity (force majeureJ by which he lost them, he cannot be admitted to prove, by parol testimony, that this deed has existed $ otherwise, the ordinance which prohibits parol proof, to prevent the subornation of witnesses, would become illusory : for, if one wished to substantiate a payment or a loan, which had never been made, by parol testimony, it would not be more difficult to suborn witnesses to swear that they had seen the obligation or the receipt, than to swear that they had seen the money paid.” I quote this opinion, not only as the opinion of a learned jurist, but as the source from which the text of the law itself<was taken. The Napoleon code is word for word the same with the first part of the corresponding article in our civil code, above referred to. Jlu cas que la créancier aie perdu le titee qui lui servoit de p reuve litter ah, far suite jf’un cas fortuit, imprevu et resultant d’une force majeure.” Thus far the Napoleon code. Iii the 10⅞ Pandeóte? foranpoises,' 360, the ordinance pf I667 is qhpted^ as jbeiug jp| conformity to it, and Pothier is referred to for .. .. , . . i the origin and exposition of the law. Our code enacts into a positive law the commentary of Pothier, and strengthens the doctrine by adding, “ but, in this last case, in order that the judge may admit the deposition either of two, or of a single witness, to supply the loss of the title, the fortuitous event which occasioned the loss of the title, which formed the literal proof, must be established.” This, one would think, would be sufficient to exclude the testimonial proof, until the loss of the deed is established. But the legislature, anxious to leave no doubt, no possible pretence for misunderstanding its provisions, repeats and enforces the idea by adding, “for, if he, who requires to be admitted to produce testimonial proof, merely alledges that he has lost his titles, without any fact appearing, or overpowering force, by which he has lost them, he cannot be admitted to give testimonial proof that those titles existed.” In looking into the Pandectas Francoises for an exposition of the article in the Napoleon code, I find nothing; but these emphatic words, “for the exposition of this section, see Pothier’s Treatise on Obligations and, on referring to Pothier, I find that our legislature have enacted his explanation into a law, and that both require that the loss of the deed should be established, that is fully proved, before the proof of its contents can be admitted.. Again then, I ask, is the loss established ? Is there, in the language of the text of the law, any fact or overpowering force made to appear, by which he has lost them. The court surely cannot think, that the expression in the French text of the code par lequel il auroit pu les perdre, is to be construed im its most extensive grammatical meaning, without any regard to the antecedent member of the sentence. If any thing, by which the title might have been lost, be a sufficient reason for the introduction of verbal proof, there is no possible disposition of the writing, that would not allow it. It might have been lost out of my pocket, out of my house, out of my band. But the text is not thus loose : the sentence must be taken together. Il faut que le cas fortuit, qui a donné lieu a la perte du titre qui formait la preuve litterale, soit constant ; car si celui qui demande a étre recu a la preuve testimoníale, allegue seulement qu’il a perdu ses titres, sans qu’il a y ait aucun fait de force majeure, par lequel il auroit pu les perdu il nepeutpas étre admis, 8fc. What then, by this text taketo together, must be proved ? Not only an event, by which the title might have been lost, but-the cas fortuit: the fait de fores . , , . , •/ . f , , majeurey by which the paper might have been lost. I return, therefore, armed with this posi- # ⅛ tive, clear, unequivocal text, to the position that a loss by a cas fortuity a fait de fores majeare, an unforeseen accident and overpowering force must be proved unconnected with, expressly exclusive,of, the party’s allegation, before testimonial proof of the existence of the contents of the Written proof can be legally admitted. And I invoke the important provision of our Civil Code % art. 13, (t Where a law is clear, and free from all ambiguity, the letter of it is not to be disregarded under pretext of pursuing its spirit.” And I ask, what is more clear and unambiguous than the words of this law, requiring proof of the loss; and no loss but by? accident or force will avail. The law is wise in this restriction; but wise or not, it is the law. And if a court can say that the delivery of a note to the owner, under such circumstances as in the present base, is a sufficient proof of loss by unforeseen accident or overt powering force, I know of no law whose pro? visions, under such a latitude of construction, can be carried into effect.
    The Napoleon code ⅛, as we have seen, the same with ours in the first part of the article, but wants the «second and third repetition of the enacting clause, which is contained in ours. The decisions under it, therefore, might reasonably be supposed to be not quite so,favourable to the side of the argument 1 espouse, as they would be were, their law as full as ours. Yet these decisions go to the full extent of myvargument, and in a case, containing much greater probability of loss, they refused relief, because it was mot proved to be by force majeure or cas fortuity as the law requires. In 3d Sirey, S27, we have this question stated under the title preuve testimoníale. La perte d’un acte non occasioned par un accident deforce majeure, pent elle etre prouvée par témoinsP The negative, he says, has been decided in the following case:
    Meyroux sold a farm fmetairieJ under a pacte a remeré to Gaube, redeemable in twenty years. The vendor’s heir, within twenty years, cites Gaube, the purchaser, to receive the price and recouvey. Gaube appears and offers to prove by witnesses that the vendor had renounced the right of redemption. This proof, rejected in the inferior court,‘is permitted Qn'an appeal, and a preparatory judgment is gi*ren ‘Which permits the ^plaintiff to prove by witnesses : ■ *
    Í. That, after the sale a writing had been executed under private signature, bv which . . , „ ,. . a the right ot redemption was renounced.
    2. That it was addressed to the purchaser, or to some other person, to be delivered to him.
    '3. That it was seen and read by several persons, who knew it to be written and signed in the handwriting of the vendor, and that it contained the said renunciation.
    4. That the renunciation was sent to the lord of Roquefort pour Vinvestir, who kept it some time, and who said it was mislaid or lost.
    These facts seem to have been fully made out in proof. The cause was fully debated: the court of cassation declared that the proof was inadmissible, in language that applies much more strongly to this case than to the one before them.
    
      “ Considering (they say) that the law has excepted from the rigor of its prohibitions the cases of forced deposits, fires, tumult or shipwreck, and that the jurisprudence, which added the case of the loss of a writing, is conformable to the spirit of the ordinance, and to the disposition of the Roman laws, in forbidding testimonial proof of the contents of att act in writing unless there should be added to it that of the accident of force mujeure, that caused the loss of the act, whereas here testimonial proof of the pretended renunciation has been admit- , . „ . ■ .' ' ted without even an allegation of an mevita-bie- accident, (cas fovtu.itJ &c.”
    As far as this is applicable can any thing better suit the case before us? Nagel does not even alledge, as much as the plaintiff did in the French case: «which note is lost,” is every thmg that he takes the trouble to telhthe court,. on the subject. The plaintiff, in the French case, goes further, and alledges and proves that he put it into a third person’s ha|ds, who cannot find it. Nagel, on the contrary, proves that it came to his own bauds, but of what has become of it, the' court is perfectly ignorant. A number of witnesses had seen, read, and remembered the contents of the renunciation. Yet, because the accident ie farce majeure was not aUedged, they pay no attention to this proof. They go on, «Considering that, if this opinion was sanctioned, the disposition of the ordinance would be continually eluded ; the most important and authentic contract might be easily annulled by means of two witnesses, who should depose that they had seen a pretended act, the handwriting of which it would be impossible to verify. They, therefore, reverse the judgment,” &c.
    
      
      Moreau, for the plaintiff.
    As the civil code does not determiuein^what manner the fortuitous event, occasioning the loss of the title, which formed the literal proof, must be established, it is proper to reetir to the laws, from which this part of our statute is derived, and the authors who have treated of the matter. :>
    
    
      “ If one, who procured a receipt for a payment, has lost it in consequence of a fortuitous event, as a conflagration, shipwreck' or the like, we order that he be permitted, if he prove this fortuitous event, to produce witnesses, who may testify as to the payment; that he may avoid the consequences of the loss of the receipt, which lie had procured. C. 4, 20, 11 Hulot.
    
    Conflagration and sbipwrefck are not the only cases, in which the party is relieved, but ajl like cases ; it Suffices that the event be a fortuitous one.
    In some decisions it, is indistinctly stated that when it is not declared that the loss was .occasioned by a fortuitous event, ai a ruin, conflagration or shipwreck, testimonial proof cannot be received. But Jt would be to stick too closely to the letter ofllie law, in an equitable case, to adhere strictly to them : it is true that the sicut iniqum eat, speaks Only of a conflagration, but the principle has been extended to all fortub tons cases, which may happen,.according/to the ,1 de fortuitis, C. de pignoratitia actione Danty, preuve par temoins, 438.
    The law cited by Danty from the code says : the accidents^vfhich fortuitously happen and cannot be foreseen,^ as an irruption of thieves, do not give rise to the warranty in bonce fidei ac-tio ties : therefore, the creditor is not responsible for things pawned which are thus lost, nor deprived from his action to recover the loan, unless the parlies agreed that the loss of the pawn should liberate the debtor. C. % ¾⅛ 5. 2 11a-idt, 66.
    A comparison of these^ Roman laws with our own, shews they all agree that it suffices that the fortuitous event should be proved, without saying in what manner the fact is to be established ; and' Danty clearly shows that any fact or fortuitous’ event, which may occasionthe loss of a paper, suffices to allow the production of testimonial proof: as, the circumstance that the defendant’s note was handed to the plaintiff, in a moment when he was busily engaged with a number of persons, may Reconsidered as one which authorises the reception of testimonial proof.
    As to the mode, in .which the event is to be established, but little is to be found in the Ra-man and Spanish laws. The Napoleón code, art. 1348; has a disposition similar to that in ours; i. e. that there is an exception to the rule which requires that all obligations above the sum of 150 livres shall be pr%^en by a ,witness, in cases iu which the creditor has lost Uie title, which was his literal proof, in consequence of a fortuitous and unforeseen event, 8Cc. by force majeure, vi majore. *
    Before the promulgation of the Napoleon code, the same "exception had been established, by the construction given to the third article of the twentieth title of the ordinance of I667j which speaks of testimonial proof, and the admission, in case of a necessary deposit, on a conflagration, ruin, tumult, shipwreck or other unforeseen accidents. ‘
    Danty, treating of testimonial proof, when the loss of the title is alledged, makes the following observations. The deposition of witnesses is tobe received with great caution, and ought only to have weight when they prove the loss of the title. For, if the witness declares only that he was present, at the execution of the contract, and details all the clauses and conditions of it, without saying any thing of the fact through which the loss ensued, or speaks of it ih vague and loose terms, there can be no doubt that Iii& deposition is of ho 'avails on account of the prohibition in the ordinance. Therefore, those who jilledge the loss of a title, fraudulently, in order to prove its contents by w itnesses, ought not to bé heard. It is then,necessary that the loss of the title and its contents be pyov-ei% so that it may he evident t)*at there was a written title, what it contained, and that it was lost. Preuve par temoivs, 423, 4S#. ' ,
    -But thfe proof of the loss cannot be expected to be made with all the rigor, with "which other facts must be established. A direct and posi-five- proof is not required,' which in most'eases. cannot be had"; but indirect an&• conjectural proof suffices.
    Danty, in the part of his work cited, expresses himself thus : but it is asked, how is the. of the loss of the title to he made ? Must the witnesses expressly declare they were present when it was taken, burnt or torn.: or will it suffice that they speak, in general terms, of the loss? The banner of making this proof is well showrn by Cynus, Barfblus and, othfer doctors, Who say that it is%bt required that the witness should depose precisely, asta the manner in which the loss happenedbut thahIt does «íífficé that the witness depose he ,⅜⅛⅜⅛⅜-to saw the titled spokel*' of, that he re$d Or beard it read $ that he knew the place in which the-^arty used to- keep his papers, and has since seen the building burnt, pillaged, .qr-that the press, in which the papers were, #ás broken open, and its contents taken, dispersed, burnt, so that it is presumable that the title in question was^destroyed, with the rest of the papers 5 thus is this proof to be made | it consists of two parts ; that the witness knew the place in which the title was hept, and saw? it pillaged, burnt, &c._ Preuve par Ummns, 426.
    Des^uiron, who treats of the same matters^, according to» the principles of the code Napoleon, has laterally copied this- passage from, Danty’s treatise*
    The deftndant’s counsel speaks nqt with his , wmnted correctness, when.he advances that, positive and decided proof of the loss must precede the introduction of testimonial proof. Direct and positive proof is indeed required of the fortuitous event, which occasioned the loss,'but not of the loss itself; for this can only he made out by conjectures.
    Desquiron,-speakjfig of tlie Roman law which we have cited, C. 4/ 20, 14, observes that it follows from the text that testimonial proof is nót tq be received fro.ui. him, who alledges the los&qf his title, without proving the event which occasioned it. A decree of the court of ti on of the seventh Ventóse, in the ethvétilh year, reversed two judgments of the courtof the department of Gironde.in which testifmj«ia! j)lPOí>f was admitted of the toss, without%r6of of the event which was alledged to hare o&asioiied it : besides the Napoleon code settles the* question. Preuve par temoins, 368. n. 473.
    This is the decree, of which the defendants .counsel seeks to avail himself, to show'that the fdaiutiif <bas‘ not made the requisite proof ofHhe fortuitous event, which occasioned the logs of the note. They referred us to Strey** \CoUecr Hon,- in 'which the decree is preserved. In Merlin’s,questions de draitj'verbmffrekW' ⅛¾⅜ | we have the whole details of the case, the conclusions of this celebrated yurist, w;hieh were the basis of the deeréé,.
    In addressing the court of cassation, JtftfHin, then* the imperial attor ney near .it* spoke'thus : “ The question whidh is presented for your1 solution is> whether festitoonial proof be admissible to shew that |Sef the execution ©f # contract of 'salej before a notary, in'which a right of redemption was resfervedf the vender, renounced this right by á private5 act,’ Which ■•⅜⅛ been held, seen and iead* bjf’several perseas, and that a man, who had been éntrusted therewith, after keépin , ..... ,, had mislaid it. " g it fór a while* declared ⅛¾ After having thus established the facts, Marlin developes the principies of law respecting it, and concludes, “ Let us well notice the condition, on wfeicji the Homan law allow$?testimonial proof of a fact, which the law requires1 io be proven by a writing : it ⅛-thatit be previously proven that the writing perished by .accident. -^Gasu qui probatur, 'causa ot per&mptionvs probantibus, say the Roman laws, which are, in this respect, the model of onr legislation. Before all .these, the loss of the instrument is to be proven, and, in order that any evidence of this may be received, the loss mult ⅛⅜ aliealged to have been the consequence of an ! act pf Violence^ vis atojar," & fortuitous event. This act of violence, vis mnjév,'fortun tons event, must be first establisheii.i’
    This reasoning of Merlin shews that the defendant’s counsel* in this case, vainly segks; to avail hi¡nself of thevcirculnstance, that in the Rrepch te^t of our code, similar to the cories-pp»d|pg part ofi the Mapoleon code, it is said that the loss of the title ought to be the consequence of an event, fortuitous, unforeseen, and Resulting from an overpowering force, to contend that the event ought*to have these three characteristics. Merlin, under the empire of a law precisely worded as our code, speaks in such a ... . Wanne r as to convey the idea^that it suffices that, the event should have either of the eha-ráele rs spoken of.
    “ What an Mea can we then conceive of the judgment brought before this court by Cecile Sinceys ? Neither allegation nor proof w as made of any act of violence, overpowering force, fortuitous event, or any accident whatever, that might have occasioned the loss of the pretended deed of renunciation of Meyroux. It was only alledged that a ci-devant lord had said, he had mislaid the deed, while the mislaying, i. e. the essential fact, was not proven.”
    Alt that results from the decree of the court of cassation, which reversed the judgment, is that proof of the contents of an instrument is not to be allowed till the event which occasioned its loss be made out.
    Can it he said that the present plaintiff stands in the same predicament as the plaintiff was in the French case ? Did not Nagel alledge #nd establish the fortuitous event which occasioned the loss of Mignot?s note? In a moment of hurry and bustle, surrounded by many persons, eagerly engaged in another affair, the note was handed to Nagel, and he accidentally mislaid it. Is it incorrect to say that these <⅝ cumstances may give rise to a presumption that the note was dropped and lost? An answer in the affirmative to this question is in conformity With the principles which regulate cases like the present. .According to these principle? direct and positive proof of the loss is not to be expected, but only of a fact from which the loss may fairly be presumed. If it were otherwise, testimonial proof could hardly ever be introduced ; for direct and positive proof of a loss is very rarely indeed to be made.
    The court will attend to the nature of the. paper, and the circumstances that attended the loss of it. In questions like the present, circumstances are not unimportant.
    Merlin, in the case cited, observed that in discussing the point, he did not forget that he was before a court of cassation, not a court of appeals :’hence, he laid aside particular circumstances which, in a court of the latter kind, would suffice to reject the testimonial proof: he would not, therefore, mention the improbability of a vendor renouncing, without reason and without consideration, his right of redemption.; that he would do so, unsolicited, in the absence of the vendee ; lastly, that the paper, after having been sent to the latter, should have returned into the bands of the former, and that it should be transmitted to the lord by the vendor. 4s Questions de droit, 127. .
    
    It seems clear that if Merlin had been, as \ve are, before a court of appeals, he would have availed himself of the circumstances, which shewed the improbability of the alledgfed loss.
    In the pveseut case, what interest could the plaintiff have in feigning ⅛⅜ loss of the note ? Will >it be suggested that he might transfer it to a third person, and thus obtain its amount twice? The note was not payable to order, and could not be negotiated vftthout a formal act of transfer, notified to the debtor. Civ. Code, 369, art. 1S1. The defendant does not alledge that he received any notice, and the payment to the plaintiff will not expose him to pay twice. Id. 128.
    
    Another striking circumstance is the manner in which the defence is made iu the case. The existence of the note, .in the bands of the plaintiff, a short time before the institution of the present suit, is beyond a doubt. The defendant did not plead that the note existed once, and that he had paid and torn it. Had this been the case, the court would perhaps feel great reluctance in admitting testimonial proof ; for it often happens, indeed it is so pretty generally, that the taákét bf a doté fears it» after pAfiilt ft, ,., , . , , without having taken a receipt therefor. It is said the general issue, in practice, admits the proof of any fact by which the plaintiff’s claim may have been destroyed, as payment, set-dff or release, &C. Admitting this, which is not perhaps clear, is it possible that, shocked at the plaintiff’s temerity in demanding a second payment of the Same note, the defendant would not have shewn his indignation, and been induced to expose the turpitude of his adversary ?
    The defendant could nót plead payment. The particularity of the details of Melas’ testimony left him Without any hopes' of success on that head. He, therefore, thought it safest to deny the debt, or the existence of the note Which is the evidence of it.
    The nature of the title, which is the ground of this action, ought to be considered as making a favorable exception in favor of the plaintiff. It would not be proper to be as difficult to admit testimonial proof, in the case of the loss of a promissory note, or bill of exchange, as in that of |he title deeds of án estate, which art*, preserved with greater care, and are seldom ex*> posed to a removal, while notes of hand and bills of exchange are kept in incessnnt éircuía-tkn, constantly passing from on® hand to anOther, often transmitted, by marl or other con- . veyaneé, to distant parts of the world. If a blit or note be transmitted, enclosed in a letter which miscarries, Will riot evidence that the letter'was put in the post office, with the derivation of the person to w hom it was directed, that it never cair.e to his hands, authorize testimonial proof of the contents of the note or bill, notwithstanding no fortuitous event, no overpowering force, no accident 5⅜ proven to have befallen, w liich ffiay have occasioned the loss ? Will the holder of the bill or note, in such a case, lose bis right of action ? Will it not suffice that a plaintiff in such a predicament prove the inclosure of the bill or note in the letter, and the delivery of it into the post office^ if the person, to whom it w-as directed, he incapacitated, by interest, from testifying ?> tosses by mail, though they sometimes happen, are not so frequent as to allow us to say they are probable.
    In France, literal proof is required by law to establish even very trifling obligations, and the courts are extremely rigorous and admit, with the utmost circumspection, testimonial proof ⅛ the case of the alledged loss of a paper. * The judge is authorized to order the payment of a mislaid bill of exchange, adhire.oo a tendel? 6f .. . ^ . security for the indemnification of the payor.
    We are, therefore, to understand the princi- * pies which so strictly demand proof of a fortuitous event, or overpowering force, conflagration, shipwreck, tumult, &c. by which a title is lost, to relate to the title deeds of an estate, or like papers, usually kept still and secure in a box or chest, and which from the undisturbed situation to which from their nature they are doomed, are hardly liable to be lost or destroyed, unless the house in which they are kept be burnt, broken open or pillaged. Papers of this kind, from the unfrequency of their removal, can hardly he thought liable to being blown off, misplaced in the hurry of business, or otherwise mislaid.
    The object of the legislator, in excluding testimony on the suggestion of the loss of the literal proof, is to prevent parties, by the production of suborned witnesses, establishing facts or obligations which it forbids to establish by any but literal proof.
    •In order that the .judge may admit this proof (that of the loss of the title) it is necessary that the fortuitous event, which has occasioned the loss of the titles be proven, constant. For if he, who asks to be admitted to testimonial proof, alledges only that he lost his-titles, without*, there he any instance of overpowering farce, through which he may have lost them, established, he shall not be allowed to shew by witnesses, that these titles did exist. Otherwise the ordinance of 16(57, which forbids testimonial proof, in order to prevent the subornation of witnesses, would be illusory. For, it would not be more difficult to him, who would wish to prove, by witnesses, a loan or payment which he should not have made, to suborn witnesses deposing they saw obligations or receipts, than others deposing they saw the money counted out. 2 PothieVj Obligations, n.7&l<
    There cannot he any doubt that, in France, proof of the fortuitous event, which occasioned the loss of a title, is rigorously insisted on, in all cases of contracts or obligations which the law Has required to be reduced to writing, in order to guard against the subornation of witnesses : but would not courts of justice he more liberal, in the case of an obligation which the law permits to be entered into by parol? The case of the alledged loss of the title deeds of an estate, the sale of which, by parol, would be void, is unlike that of the alledged loss of the receipt of a taytor’s bill, which might be proven by parol, to have been paid. A rne-ehanic claims payment of an account, which I paúl : I may by witnesses prove the payment, and the law apprehends not that I suborn a witness therefor. Why then should it apprehend, if I took his receipt, the subornation of a witness who'deposes that lie saw and read this receipt, that he well knows it to he in the mechanic’s handwriting.
    Danty has very satisfactorily treated this question in his Prenve par temoins, ch. 15. w. 8, IS. He says, Cujas on the t. SI, c. ie fid, instr. makes a distinction, as to the admission of testimonial proof, in the following case. If iu the affair there was not any necessity of having a written act, there is no necessity of proving that the act is lost, if there be other sufficient proof of the fact, according to the fifth law of this title : for this law does not say, that proof is to be made of the loss of the title ; but, that the creditor must lament his loss and prove the fact. But, in a case in which no writing was necessary, yet if a written act was made, and it be lost, although the loss be proven, it will not avail, unless there be proof of every thing con- . taitied in the act; which is confirmed, says he, by the third law of this title, which expressly provides that, although it be proven that the title is lost, the proof is of no use, if those who make it, do not depose as to the contents of the writing. Cujas adds, that it suffices to prove what was done, although there be no proof that the title is-lost. But, he speaks only of cases in which writing vvas not necessary to the proof of the fact disputed ; for a little after he adds that, when writing is necessary, if the instrument be lost, there must be proof of its loss and contents.
    It is then clear, on the united authorities of Cujas and Danty, that proof of the loss of the title, in cases of obligations,‘which the law does not require to be reduced to writing, is not necessary, when there are witnesses who may prove the obligation : and it follows that, under the empire of the ordinance of I6fi7> the second article of the twentieth title of which required a writing, in every case when the value of the object exceeded one hundred livres, aud under that of the code Napoleon, the IBilst article of which requires it only in cases where the sum or value exceeds one hundred and fifty livres, proof of the loss of the writing is not pecessary, if the party has witnesses who may prove either, that the instrument was executed or the obligation contracted.
    The plaintiff then, in the present case, is not absolutely bound to prove the event which has occasioned the loss of the defendant’s note, . , , ,. „ , , , since the obligation, ot which the note was evidence, was one which was susceptible of parol proof; two witnesses depose to the existence of the obligation, and one of them shows its character to be commercial.
    
      Livingston, in reply.
    It is difficult to answer the first part of the plaintiff’s counsel’s argument, because almost every sentence of it contains some proof bisonte authority to strengthen the principle, for which I contend.
    The court will understand this the better by again referring to the allegation of the plaintiff, in his petition, and to the proof; the allegation is that the defendant made a promissory note for the sum of one thousand four hundred eighty nine dollars; that the plaintiff has lost it, and that the defendant refuses to pay.
    There is no exposition of the manner in which the loss happened. Yet, if I understand the authority quoted, this is absolutely necessary, before any proof whatever of the loss can be admitted. It faut done qu’avant tout la perte de l’acte soit prouvée, et pour que Pon soit ad-mis a en faire la preuve, ilfaui qu’elle soit articu-lée, commePeffet d'un acts de viole nce, de force majeure, d’un evenementfortuit. If 1 compre hend right the meaning or the word articuler it imports a charge or statement of the fact, previous to the production of the proof to support it, and is equivalent to a statement in the petition, under our practice; the authority then relied on proves that it must not only be proved that there was a loss, and that it happened either by violence, inevitable necessity, or a fortuitous event, but the fact of loss must be stated in the petition, together with a designation of the particular event, and its circumstances, by which the loss happened. Therefore, in this the plaintiff’s authority strengthens the defendant’s case.
    In the plaintiff’s argument, the last member of the sentence, part of which I have already quoted, tells us : Il faut enjin que cet acte de violence, que cette force majeuve, que cet évenementfortuit soient constates. The plaintiff’s counsel is good enough to employ Merlin to plead the defendant’s cause. “ What then shall we think, says he, of the judgment, &c. in a case where the party did not prove, nor even alledge, either act of violence, or inevitable necessity, or fortuitous event, by which the paper was lost. They content themselves with alledging that % ci-devant seigneur had said that he had lost it, but the fact of this loss, that is to say, the essential fact, was not|tlledged, and still less proved; this then was a case, if ever one existed, to/Ve-ject the proof,” &c. Change the names of the parties, and the court might Imagine Merlitt had argued for Mignot; the {⅝⅛⅛ tiff neither1 al-ledges nor proves any act of vidfence, any ine-; vitable necessity, any fortuitous event, any loss by any other means. Merlin’s case was stronger ; for there thg ci-devant nobleman was proved to have said that he had lost the paper : in the case before the court, it is only the plaintiff himself who says he had lost it: he has not even the dixit of a witness to rely on ; we may then be jusfifted in adopting Merlin’s words* this then is a case, if ever one existed, to reject the proof.” ,*
    Therefore, in this also the plaintiff’s authority strengthens the defendant’s case.
    Departing from the written and precise and unbending rule, which our code presents* the plaintiff’s ad voléate thinks he can have some .advantage by*recurring to the French ordinances anterior to the code, and to the commentator Upon them.- Let us see how he succeeds ; Danty, on wbdrft he relies, says “ we must receive the deposition-pf witnesses on this subject with great caution, ánd they are not proof unless they state the loss of the paper in question.” 
      “ ít is nécessary that the witness sbottlddepóse ,, . ... . ⅜ * i . particularly to the loss ot the paper, and at the same time, declare what was .contained in it.” The remainder of this authority contains the same doctrine, and the only difference I find in it, from the law which must be our guide, is that our courts are bound to make the proof of the loss a preliminary to the introduction of the proof of the contents of the deed ; whereas, Danty, under the ordinance, seems to think they are to be admitted simultaneously. Buf this is rather a dispute about words, because even ac* cording to him the proof of, the contents cannot be made without proving the loss. Therefore, even the legislation of the ordinances and the decrees under them is in our favor, and the learned counsel must excuse me if once more X repeat my formula, that the plaintiff’s authorities strengthen the defendant’s case.
    Leaving his authorities, T return to the admission of the plaintiff’s counsel. He frankly acknowledges, what indeed the clear expressions of the law forced him to acknowledge; that the single allegation, made by the plaintiff, of the loss of the paper, was not sufficient. But he is very far from acknowledging (he tells us) that the proof of this fact* must be rigorously made, in the same manner as proofs of other • facts, alledget} in support of actions on obliga-⅛«. He, soporté |hts position first, by ⅛⅜ reflection titái in many cases, positive pfroof of the actual destruction of the paper would be> absolutely impossible : to this, I answer that,, the learned counsel departs from the provision of the law, and of course, from his usual accu* racy in this reasoning. The law does not require this impossibility, nor have I been so unreasonable as to extend that it does. The law does not require the positive proof of the loss; but, it requires that the fortuitous event, which, occasioned the loss of the title, should be established. And immediately after* “if he merely alledges that he has lost them, he cannot be admitted, &c. or, more extensively in the French text, par lequel il auroit pu les perdre. But, this relative in the French par lequel, refers to the antecedent fait de force majeure. So that the plaintiff is not obliged to prove the actual loss, but a fortuitous event, an unforeseen accident, or an inevitable necessity, by which it was probably lost. Now, in complying with this disposition of the law, there is neither impossibility nor even hardship. I am willing to admit, and have admitted, that all the cases, quoted by the plaintiff, came within the spirit of this. law. Thus the ease from Danty, where the proof was, that the witness knew* the plaee • , where the plaintiff%ept his papers, that it was in his dwelling house, that the'house was cdn-»amed by fire, or was pillaged by an enemy, And the papers dispersed and torn, &c. : sé that it ⅜ probable the paper in question, which was with the others in that plate, was also dispersed and torn, &c. Here is positive direct proof of the event, and circurhstautial but strong presum jfíive proof oCjjKfc loss by that accident. This is all I have rapiired in the p^ sent case, and it is not qiiite candid forSi tK« plaintiff’s counsel to áiy as he does, that I⅛\⅜⅝. not been Cbrrect, whCn i maintained that direct and positive proof was required -éf t%e 10fe¡. This is the less excusable, as I baveendmvo¥-ed to maintain the reverse, as my position. . ¾⅜⅞ court will there find that, speaking on this ⅜)11⅜" jectylsay, he Baust piTve the 1⅛»⅜. How ? I «answer : in the samé manner, that any other* fact is proved; by evidence, either positive nr circumstantial and again, I d© not, I repeat* insist that this proof shouldin all cases be direct, but it must be stlch as will induce a presumption of the loss, unconnected with any' declaration of |⅜⅜ party, which if expressly excluded.
    Inátead, theref^V of combating what IbAve *ot advauced, it would have served the pli&t-cause pure effectually, had he directed ⅜⅛ • •« ⅞⅛0⅛ foree to shew th$,t he has done that whijG% we ajl agree to be necessary in like cases,, yiz» produced proof of the fortuitous event, the unforeseen accident, or the inevitable necessity wbÍGh*renders the loss a presumable, event, , A
    What is this event ? It is- contained in. the testimony of Frederick Melas ; the note was deliv|p’ed tóffbe plaintiff, ata time v#hen there were a great ma^^persons in-Ms shop. ; This i&all.! this is théjwhole proof on the subject.! and, in this miserable penury , of proof, we Mnd the true reason whyHhe plaintiff’s •counsel kasff'ound it more convenient to eptertaip the cosurt vpfeh complaints of the hardskip^and evep itBpossihility of pro ving, an/actual-loss by .direct paftof» than to meet the true question of the cause, and shew that he had proved a fortuitous event, or an ac^denk or an inevitable necessity which rendered/it presumable, ⅛ vNow,- unfortunately, the proof here, independent of the plaintiff’s allegation (Which . the law expressly excludes) renders directly the Reverse presumable. ’Jihe^witness gave him the/noté ; thdtpresumption therefore is, that he still has ⅜ fie gave it to - Jhim-at - his, own house,, ⅛ .his own. shop, whére it would "probably hgifeithpr lost ftr .m's-laid : in the presence of many persons, thp fapt therefore is not doubtful. By what process of reasoning is it, that all these circumstances eop-curring to prove that he has it, should be made proofs that he has lost it?
    Suppose the note to have belonged to another» who should have sued Nagel for it, and on tbs trial, precisely this evidence should have been introduced, would it not have been amply sufficient to charge him ? By what process of perverted reasoning then, I repeat, can the same circumstances he considered as evidence in one case, that he has the note, and in the other, that he has pot got it ? Feeling the absurdity of this attempt, the plaintiff has been obliged tp create, in his argument, a bustle, a confusion and tumult, in the quiet shop of Nagel, which does not exist La the proof, in order to introduce the inference that, in this hurry apd confusion, the note was lost.
    It is attempted also, by the plaintiff, to lea# the court into a consideration of the improba^ hility (as it is called) that he should conceal the note, if he really had not lost it. To thi$ I answer first ; that these considerations can only arise from the examination of evidence improperly introduced. For, if the proof of ⅛⅛ fortuitous event, or inevitable accident, by which the paper was lost be wanting, the court ara forbidden to consider any thing e^se‘ Whether the note was payable to order ; whether the defendant acknowledged it, or did not acknowledge its existence ; what motives the plaintiff may have for alledging the loss? are circumstances, only to be enquired into after that is done, which is the passport, and the only passport of such testimony, To exemplify this : the plaintiff can. have no motive to al-ledge the loss, says his counsel, because, the note was not to order ; therefore, he cannot have passed it to another. ‘The amount is ascertained ; therefore, he can recover no more than would have done on the note. But how do Jfe know these facts ? Oh, they are proved ? But, if the proof ought not to have been introduced, how then? Why then, we have nothing. Secondly, I say a plaintiff may have strong motives to conceal his noté, and trust to the imperfect memory Or corrupted testimony of witnesses to supply its loss. Things may appear on its face, Which he would wish to conceal; it may be for an illegal consideration ap-, parent on its face; it may be cancelled. But, X do not enlarge on this point, because, it woOld be repeating what I have said, and I close my reply on this bead, by again calling the attention of‘ the court from the consideration nf the several inatters to which tjie plaintiff wishes to direct it, to the only material question in the cause, — has a loss beeu proved either by a fortuitous event, or inevitable necessity ? ^
    A new point is raised in which the counsel seems to place much reliance, and which for that reason only, I shall examine with some attention. Every thing seriously urged, from so. respectable a quarter,, requires- examination : otherwise, I should consider it as introduced only to endeavour to make up by number for the want of weight in the array of argument.
    The prohibition to receive parol proof of the contents of a deed, which it is alledged is lost/ before the loss be proved, was intended (says the plaintiff) to prevent perjury and fraud, and to preclude an evasion of the laws which forbid debts of a certain nature to be proved but by writing. But if the debt claimed, be such a one as might have been proved without writing, then the reason ceases, and without danger of the evils which the law intended to avoid, you gtay be allowed to introducé testimonial proof; These positions it is said, are supported by Dnnfcy, and the passages he quotes from Cujas.
    dt is always dangerous, if We would come |b ⅛ ¾⅜⅛ deéision on a text of Written laW| which is clearly expressed, to pursue ieaspn-Ih^s oft óthéí laws in pati ríiatería, which differ. from it, although the difference at first may not seem material. But, where the difference is very great* it is truly bewildering oür-selves very much, to pürsue all the reasonings that may have been had on the subject. In th@ present case, the law commented upon by Cu-jas and Danty in the C. 4, SI, 1, “ if yon pan prove in any manner*” says that text, u that the defendant is indebted to you, on being called before the president of the province, he will he compelled to pay; nor can the loss of the instrument he objected to, if you prove by-clear testimony, that he is your debtor.” This law, as will be perceived, is the very reverse of ours, and permits what ours expressly forbids. And it is in commenting oft this law that, the distinction set up by the plaintiff is made by Dan*ty ; for Cujas, according to the quotation given from him (for I have not his work) contents himself with enforcing the text of the law, fat he says, qu’il sufjit de grower que la ehos-e a ete faite quoiqu’on n’áit pasprome que l’áete¡ ait ete pendu.
    
   On this, Danty is of opinion, that this 1⅝⅜* relates only to cases where the transaction of which the writing is a proof was of necessity to be proved by writing. l$ut, ;vyeare coastil»-⅛⅞ bur «ffnt not the Roman ndr the French , . ' . , law, as it stood before the Napoleon code, Civil Code^ SIS, (M7). “ There is, lastly, an exception to the rules laid down in the foregoing S list, and gISd art. whether the creditor has 1.-st the title whieh served him as a literal proof,” &c. What are the rulés of the two articles referred to ? ⅞ ‘

First. That no parol proof shall be admitted to prove a sale of slaves or real property.

-Secondly; That no such evidence shall be admitted against or beyond what is contained in tire acts, or what may have been said before^ since, or at the time of making them.

By the 24tfth art. then, parol proof may be introduced to prove a sale of real estate or slaves, oi; to prove what may have been said .and agreed on at the time of the act, or before or ⅜0<⅞, provided the loss he proved in the manner directed by the article. No other case is provided for, no other relaxation of the law contemplated by our law, in the case of lost deeds. ■■■ - ./■

⅜ Thfe plaintiff, under this head of hisargutoen% seems) to admit that were the deed, alledged ⅛ ⅜⅛ fesfc of the sate of a house, or a ⅜⅛⅝⅛⅛ #&er kansacttoa- reqnired'JLo be reduoed <f_ writing, that tlfe vioagly proved i but when the agreement ísjof , . , ' , , such a nature as might have befen proved by parol if no writing had been made, then the loss need not be proved at all.

But, we are construing a written law bearing generally on. all cases of lost deeds, and containing no such distinction, as is contended for: therefore a court that would make such distinction must legislate, which is not only forbidden by the nature of judicial functions, but expressly by statute, where it is expressly forbidden to forsake the letter of the law where it is unambiguous, under pretence of pursuing its spirit. But, if there were any equivocal expressions in this law which would justify us in examining into its spirit, it. would be uo difficult task to shew that by admitting the distinction contended for, the principal objects of enacting the law would totally fail; these objects need not again be repeated.

To exemplify this, I will state too cases: A. makes a sale to B. of a plantation and slaves ; but in reducing it to writing some material stipulation in favour of the vendee, which had been Verbally made at the time of concluding the bargains has been omitted in the act; if the vendjie produce the sale* he cánnotgivé evidence of this stipulation,’ because it is not contained ⅛⅜& act s therefarei? he pretends that it is lost, and - V . . . calls witnesses to prove the bargain ;? there it is coacéded, by the plaintiff’s distinction, that the testimonial proof cannot- be admitted without proving the loss of the act; but A. makes another contract with B. relative to any-other object which might be proved by two witnesses, without writing, for instance, for the building of á ship, but for greater certainty the parties reduce ¾11 their covenants to writing, the same circumstance takes place as in the preceding supposed case ; a stipulation relative to the payment, or some article relative to the execution of the work which was agreed on verbally, wás not reduced to writing; the party w anting to supply this ©mission by verbal proof, cannot do it, if he produces the act; he, therefore, alled-ges it is lost, and without any proof of the fact, according to the distinction, taken by the plaintiff, he may dp so. He may give evidence beyond the contents of the act. He may state w hat passed at the time of making it or before or since. He may even contradict it; for the act not being produced, its contents, ag well as every other fact attending4t, must depend on the weight of parol proof. Now, I ask what possible difference is- there’ between the #wp cases Is not the danger of perjury the same# Is not the temptation to concealment, as great ^,e one case? as to ⅛® other ? And can We conceive that the legislature intended any distinction, niore especially as they have expressed: none? . *, .

The true rule is this, that although parties may, in certain cases, trust the proof of their conventions to the memory of witnesses only, yet for greater certainty they may (though not obliged so to do) reduce them to writing ; but the moment they are so reduced to writing, they become subject to alb the rules,for the proof-: of written agreements, and their constructions*: and it appears to me, that it would, be a strange argument to say, that none of those rules applied in cases, where it would have been lawful for the parties to have contracted without writ* tog*

Suppose, in the case before put, of an agreement for building a ship, the plaintiff alledges in his petition, that an agreement was made for the work to be done in a certain manner and by a certain time, and on the trial, when the,plaintiff. opens his case, his first witness should declare that the agreement had been reduced to writing, and that the writing had been delivered to Ae plaintiff: and even should add, that it had been given to hi a» in his counting house where there were many persons present, would ... , . , ' ... not rus adversary immediately have a right to stop the witness and call for the instrument as better evidence than the verbal proof; and would it be a sufficient excuse to say, with the plaintiff in this case^ “ the contract would have been good, although it had not been reduced to writing, therefore, although it was, I am not obliged to produce the act. It is my interest to conceal this writing because, 1 know' the witness has forgotten a part that operates against me ; there is a receipt for part of the money on the back of it, of which my adversary has no other testimony. In short, I lose my cause, if I produce the paper; I gain it by the w'ant of recollection, the prejudices, or the perjury of the witnesses, if I do not: therefore, I will keep it safe in my pocket-bool* and prove my case by parol testimony?” The court would 1 imagine, say we must have the best evidenclf that the case can afford. Here the parties have created higher evidence than the law would have required, if they had not chosen to do so ; but since there is a written contract, we will hear no evidence of a verbal one. Unless you produce proof that the higher degree of evidence has been lost, we really cannot think that, because it was delivered to you in your own shop where a number of persons were present, we ' , . ,. ,, ,. „ . ought to give credit to your allegation ot its being lost.

, Such it seems to me, would be the decision of a court in the case of a suit brought on the original contract, without mentioning the written one. But, here let it be remembered, the suit is brought on the written contract, on a note without even any allusion to the consideration for which it was given : nor is that uncertainty supplied by proof. The court knows no more of the debt, than that the defendant is alledged to have made his note ; whether he owed the nioney for a tailor’s bill, for money lent, or for any other cause is neither alledged no? proved : the note, then, is the cause of action. The note must be produced, or proved to be lost in the manner prescribed by law, or the plaintiff cannot recover.

Therefore, even if the plaintiff’s new formed distinction could be established, it could never apply to a case where the suit was brought on the instrument itself, which is alledged to be lost, not on the contract which it witnessed.

§£"STo judgment was given during this term.  