
    Taylor’s Administratrix v. Peyton’s Administratrix.
    April Term, 1794.
    Evidence — Copy of Bond — Waiver of Production of Original.- — if in debt on bond, 'with a proferí, tbe defendant crave oyer, which is given, hut the bond shown is a copy, and the defendant plead payment, he waives the necessity of producing the original, and a copy may be given in evidence at the trial, upon due proof of the loss or destruction of the original.
    This was an action of debt upon a bond, instituted in the District Court of Northum-berland. The declaration was in common form, with a profert &c. Upon oyer, the bond is set forth at large, and the defendant pleads payment. The jury found the following verdict, viz: “We find for the plaintiff the debt in the declaration mentioned, if the court shall be of opinion, that the copy of the original bond with the endorsements thereon, filed in this cause, and proven to be stolen and burnt, all of which is well attested, is legal evidence to go to the jury and support the plaintiff’s declaration , otherwise they find for the defendant. ’ ’
    Upon the copy of the bond is endorsed a memorandum signed by three persons, certifying that they had compared the copy with the original and found them perfectly to agree. Judgment for the plaintiff and appeal prayed.
    Washington for the appellant.
    The copy of a deed, of which oyer cannot be demanded, may be given in evidence if the original be lost, or be in the possession of the adverse party. But if oyer be demanded, and must be given, the obligee has no remedy left but to resort to a Court of Equity, to establish the bond. Even if this court should consider itself bound by the *case . of Read v. Brookman in 3 Durnf. and East. 151, still that decision will have no influence upon this case, since the loss of the bond is not stated in the declaration, or put in issue by the pleadings.
    Marshall for the appellee.
    The case of Puered v. Duncombe, 2d Ed. Ray, 852, is an express authority to prove that it is not necessary to produce the original bond. Why the party should be forced into a Court of Equity, if he can at law prove the existence, and subsequent loss or destruction of the bond, I am at a loss to imagine. The same evidence is required in both courts— The danger of setting up a forged bond, for the copy of the real one, is not greater in the one court than in the other. If a suit should be brought in the Court of Chancery, and doubts be entertained concerning the execution, or loss of the bond, that court would at last direct an issue to be tried at law. In the note to the case of Read v. Brookman, it was-decided that the copy of a bond, or of a release might be given upon oyer. But admit it to be true, that the bond must be produced, if oyer of it be demanded, yet if the defendant wave the necessity of seeing the original, and without denying the validity of the bond, avoid it by the plea of payment, it is surely too late after this to object.
    Washington in reply.
    The case of Puered v. Duncombe was decided before the statute of the 4th of Ann, C. 16, making the sum mentioned in the condition, instead of the penalty, the real debt, and is therefore not to be relied upon.
    The case of Matison v. Atkinson, 3 Durnf. and East 753, in the note, is against the appellee, because it proves, that where oyer of the original is dispensed with, the plaintiff must file a special declaration, stating the loss of the bond, or obtain a rule upon the defendant, to shew cause, why profert of a copy should not be accepted. This mode of proceeding, tho’ new, seems liable to no solid objections, because the loss being put in issue, the defendant is apprized of the point he is to contest.
    
      
      Evidence — Copy of Bond — Waiver of Production of Original. — Tn waller v. Ellis, 2 Mnnf. 100. it is said tbe declaration -was sufficient in stating- a copy of the bond; the principle of the common law being that where a deed is remaining in one court, it may be pleaded in another, without showing forth; especially as the defendant in this case has not insisted upon oyer of the oriamal, but has accepted 
        oyer of the copy {thereby waiving; a necessity of the production of the original), and has pleaded to the action, citing Taylor v. Peyton, I Wash. 252.'
      See monographic note on “Bonds” appended to Ward v. Churn, 18 Gratt. 801.
    
   EYONS J.

We will not now determine how the case would have been if the defendant had insisted upon oyer of the original bond: because it is clear, that she has waved the necessity of its being produced, by accepting oyer of a copy, and pleading to the action.

The case is completely within the reason of the modern practice, stated in the case of Read v. Brookman, in 3 Term Rep. and the notes subjoined.

Judgment affirmed.  