
    CONSTITUTIONAL COURT,
    CHARLESTON,
    MAY, 1803.
    Anderson, et al. v. Robson & Jones.
    In an action upon a bill of exchange supposed to have been lost, a letter from the plaintiffs, who resided abroad, to their agent- here, inclosing a duplicate of another letter to him, which they stated had been sent by a vessel that sailed shortly before, and which purported to contain the original bill of exchange, was offered in evidence on behalf of the plaintiffs, upon proof, that the letter bag of the vessel, by which the bill was said to have been forwarded, had been thrown overboard at sea, whilst she was chased by a French privateer, which circumstance could not have been known to the plaintiffs, at the date of their letter forwarding the duplicate. Held, that the letter and duplicate were admissible in evidence to prove the loss of the original. Brevard, J. du~ Htcmte. Vide 2 Bay, 495, tí. O. °
    Motion for a new trial, on behalf of the defendants. The action was on a bill of exchange, supposed to have been lost; and was tried before Johnson, J.,in Charleston. A witness called by plaintiffs, proved that Robson, one of the defendants, acknowledged 
      to (be witness that ho bad drawn the bill in question : and further tesa tified, that he, the witness, afterwards received a letter from the plaintiffs, inclosing the duplicate of another letter from them, which stated that they had inclosed therein tho original bill, the original of which letter had been sent by a vessel called the Britannia. It was proved, that it was generally understood, that the ship Britannia had been chased by a French privateer on her voyage. The bill was drawn in this State, payable abroad, and had been protested for non payment; and the vessel was bound from the place where the bill was payable, to this State. It was also proved, that it was generally understood, that at the time the ship was chased, the papers on board were cast into the sea, It was proved that the captain of the ship brought no letters ; and that it is usual, when a vessel is chased by privateers, to throw tho papers overboard. The court admitted this evidence to go to the jury, as proof of tho existence and loss of the bill in question ; together with evidence that the bill had not been seen or heard < f since. The witness was the plaintiff’s agent in this country, and the duplicate of the letter from the plaintiff was addressed to him, and had been forwarded, before the plaintiffs cool:! have ku'.wn of the loss of the Britannia’s letter bag. The witness declared -.hat the original letter never cameto hand. The jury found for the plaintiffs.
    In support of the motion for a new trial, it was insisted, that the evidence of this witness in regard to the duplicate, and the duplicate itselfof the plaintiff’s own letter, were improperly admitted in evidence. That the plaintiffs were allowed to give their own writings in evidence, to prove a matter, without which they could not recover. That it was not proved, that the duplicate was written after, or before, the plaintiffs might have heard of the chase of the Britannia. I Esp. Dig. 143. That it would be extremely dangewous, to allow such evidence. That the declarations of a party should never bo admitted as evidence for him, no matter when made ; for such declarations might be made, before the event to which they might afterwards apply, and yet made in contemplation of such an event. That men might speculate on such probabilities, and an opening should not be given to any such speculation : it might prove hurtful to commerce.
    
      E Contra.
    
    It was argued, that the duplicate letter could not be supposed to have been written with any sinister view. The circumstance of the Britannia’s having thrown overboard her letters, could not be known to the writer of the duplicate, when it 'was written ; and if her papers had not been thrown overboard, the proofin this case would have been sufficient. It never can prove dangerous, to admit proof of this kind, in a case circumstanced like the present. The proof is clear, except as to a particle of proof, which is supplied In this duplicate letter ; which, although it comes from the plaintiffs, conns in so unquestionable a shape, that it must be credited. Suppose the bill should yet appear, the recovery in this case would preclude a future recovery on the ori. giual oill. Tindal v. Brown, L T. R. 167.
    TuhnbuIíí, lor plaintiff. Curves, for defendants.
   The court

(Bay, Johnson, Tkezbvant, and Brevard, Justices, absent, Gri.ukk, J. and Waties, J.)

refused a new (rial. They thought, that under the peculiar circumstances of this case, the evidence admitted, and objected to, ivas the best that could be obtained, or that the nature of such a case admitted of; since it is seldom known by the captain of a vessel, who receives letters to carry, from whom they come : and it is not usual for persons delivering letters to a Captain to he carried, to take witness, es of the contents and delivery. A duplicate, therefore, under such circumstances, may safely be admitted, to prove a delivery of a letter and its contents. There must he collected from other evidence, enough to strengthen and confirm this proof, and also to provea probable loss of the original letter, and its inclosures. All such proof, in a case exactly, or very nearly like the present, may without danger he admitted. It ought to he admitted, since without it, the plaintiff' can have no remedy at law, or in equity; and should it ever so happen, that the original should afterwards ap. pear, the defendants are not without redress.

Brevard, J.

at first disagreed with the rest of the court, but after some time, concurred, saying, he expected the decision would never be quoted as a precedent, in any case, that did not stand on very nearly the same ground as this case, or rather run upon all fours with it.

New trial refused.  