
    Robert V. Davis, vs. James Black, Administrator of Thomas M. Black, deceased.
    In an action upon a lost note, the affidavit of the plaintiff of the loss of the note, though competent as addressed to the court, to lay the foundation for the introduction of secondary evidence of its contents, is incompetent as proof to support the issue before the jury.
    Where in an action on a lost note, the affidavit of the plaintiff of the loss of the note, in which affidavit the note is particularly described, was permitted to he read to the jury, but there was ample other proof of the character and contents of the note ; held, that although it was error to admit the affidavit, it was not such error as would entitle the party against whom it operated, to a reversal of the judgment against him.
    Where the maker of a note promised the holder to pay it, such promise dispenses with proof of title in the holder, and is prima, facie evidence of ownership in him.
    "In an action by B. against D., on a lost note, G. testified that he had indorsed the note in blank to S. and B., and described the contents and character of the note ; H. testified that after the indorsement to S. and B., D. promised to pay B. the note ; held, that D.’s promise was sufficient evidence of B.’s1 right to the note, and of his having procured an assignment of S.’s interest.
    In error from the Madison circuit court.
    On the 18th of March, 1840, James Black, administrator of the goods of Thomas M. Black, deceased, sued Robert Y. Davis upon a note for $546 46, dated February 20, 1888, payable to William Gartley, on the 1st day of January, 1839. The declaration alleged, that Gartley had indorsed the note to Lewis M. Garrett, who had indorsed and delivered it to the plaintiff’s intestate, since which period it had been lost. The defendant pleaded non assumpsit; the case was tried upon this issue, and the jury brought in a verdict for the plaintiff. At the trial several bills of exception were sealed, from which it appears, that the plaintiff below was permitted to read to the jury, as evidence, his own affidavit, in the following words, viz. :
    
      “ State of Mississippi, ) ss Madison County, \
    
    “ Personally appeared before me, a Justice of the Peace, James Black, administrator of all and singular the goods and chattels, rights and credits of Thomas M. Black, deceased, who being sworn says, that a promissory note, executed by one Robert Y. Davis, about 20th February, 1838, and due 1st January, 1839, to one William Gartley, and indorsed by said Gart-ley, for the sum of five hundred and forty-six dollars and forty-six cents., which note was lost out of the possession of said Thomas M. Black, before his decease, or mislaid, so that the sanie cannot be found, and that it remains unpaid, and is due just and correct.
    (Signed) Jakes Black.
    “ Sworn to and subscribed before me, this 28th January, 1840.” James Pmestly, J. P.”
    Lewis M. Garrett, one of the indorsers of the note, testified that in March, 1838, he assigned the note sued on to Sadler & Black, through one Loomis, their agent, in payment of a debt due by the witness to them, but did not remember whether he indorsed it or not; that the note was indorsed in blank by Gartley, to him ; that he was notified by T. M. Black, in his lifetime, before the note was due, not to pay it, as the agent, Loomis, had absconded, without delivering it to them.
    Wesley Drane, the attorney for the plaintiff,
    then testified, that after the note became due, he conversed with Davis about it, who promised to pay the amount; that Davis subsequently required that the plaintiff should give an indemnifying bond, before he would pay it; that a bond was prepared, which J. R. Nicholson, late judge of that court, had pronounced sufficient, which he had ready to deliver to Davis, when Davis informed him he would not receive the bond nor pay the debt, being advised by his counsel not to do so, and requested the witness to bring the suit.
    This being all the testimony, the court, at the instance of the defendant, instructed the jury :
    
      1. That if they believed the note sued on was lost before it became due, and that at the time it was lost it was indorsed in blank, they will find for the defendant.
    
      2. That if they believed, from the evidence, the note declared on was purloined, or fraudulently kept by the agent of the plaintiff, they will find for the defendant.
    3. That if they believe, from the evidence, that the note sued on was assigned to Sadler & Black, and that Thomas M. Black, whose administrator sues, has had no assignment of the note from Sadler & Black, they will find for the defendant. '
    Upon which the plaintiff’s counsel asked the court to instruct the jury,
    “ That if they believed that Davis, after the loss of the note, promised to pay it to the plaintiff, they must find for the plaintiff.”
    After the verdict and judgment against him, the defendant below sued out this writ of error.
    
      L. Maury Garrett, for plaintiff in error.
    1st. The court below permitted the affidavit of the plaintiff below, James Black, to be read as evidence to the jury, and in support of the declaration. This was error; .because, 1st. James Black was a party on the record ; 2d. He was interested in the event of the suit; 3d. The affidavit was voluntary and ex 'parte. Either of these three objections was sufficient to exclude it, for the purpose for which it was introduced. That parties and persons interested may be competent witnesses, to prove facts and circumstances necessary to lay a foundation for secondary evidence, is not denied. But this exception to the general rule rests upon the ground, that the point is preliminary and incidental, addressed solely to the court, and not affecting, the issue to be tried by the jury. Taylor v. Riggs, 1 Peters, 591. 20 Johns. 144. 1 Phil. Ev. 454, note; and 4 lb. 8, note 26.
    But even if this affidavit had been read, not to the jury, but to the court, it is not such an expurgatory oath of the party as the judge of the court below, in his legal discretion, should have required in order to lay a foundation for the admission of secondary evidence to the jury. For the affidavit was not sworn to in open court, on the trial of the case, in May, 1842; it was made before a justice of the peace, in January, 1840, more than two years before the trial. From aught' that appears, the note might have been found or recovered before the time of the trial, and passed, by indorsement or delivery, through the hands of a dozen holders, legally competent to maintain a suit upon it. Whether the admission of the affidavit was to support the declaration before the jury, or whether it was addressed to the court as auxilary to the trial, the ruling of the court below was equally erroneous.
    2d. But even waiving all objections to the admission of the affidavit, and there are ample grounds left on which a reversal of the judgment below should be had. The evidence for the plaintiff, on the trial, shows that the note alleged to have been lost out of the possession of T. M. Black, (the plaintiff’s intestate,) was payable to Gartley, and by him indorsed in blank to Garrett; and that it was delivered or indorsed in blank by Garrett, not to T.' M. Black.fbut to Sadler & Black, before it became due ; or rather to Loomis, the agent of Sadler & Black, who absconded with it. There was no proof that Sad-ler, the other member of the firm of Sadler & Black, was also dead. And yet Sadler, as surviving partner, alone could maintain a suit in this case. See 1 Chit. PL 21. Peters, Administrator v. Davis, 7 Mass. R. 257. Our statutes (Rev. Code 108, sec. 26, and Laws of Mississippi, 353,) have not altered the rule of the English law in this respect. So that this secondary evidence, even if properly admitted, so far from showing any legal right on the part of the plaintiff to recover, proves conclusively that he haij no cause of action against the defendant below. The proper time and place, however, to obtain a remedy for this was, perhaps, in the court below, by moving for a new trial, as in case of a nonsuit.
    3d. But the court below did not stop at the admission of this illegal secondary evidence. It wént so far as to permit the plaintiff to prove that, after the note became due, Davis,- in a conversation with plaintiff’s attorney, promised to pay the amount, if the plaintiff would give him an indemnifying bond ; and that such a bond was prepared, “ with securities which J. R. Nicholson, late judge of said court, pronounced to be sufficient,” but which Davis refused to receive. And to cap the climax of error and injustice, the court below then charged the jury, that if they believed from the evidence “ that Davis, after notice of the loss of the note, promised to pay the plaintiff, they must find for the plaintiff!” Even if Davis had absolutely and unconditionally promised “ to pay the amount” to the plaintiff, such promise was a nudum -pactum, and there could be no recovery'on it. Ten Eyck v. Yanderpoel, 8 Johns. 120. Rann v. Hughes, 7 Term R. 350, note. Chit, on Bills, 292, 293. But the promise was conditional, to pay the plaintiff, if the plaintiff would give him an indemnifying bond. Davis did not bind himself to take such securities in the bond as “ J. R. Nicholson, late judge,” or any other judge might deem sufficient; but such only as he himself should approve. This promise or agreement, as proved, admits of no other construction. The plaintiff below did not offer such a bond as Davis approved, and he was not bound to accept it. If he had accepted the bond, there might have been a consideration to support the promise. Chit, on Bills, 293. This instruction of the court below was, therefore, erroneous, both because the promise was p, nudum pactum, and because it was inapplicable to the facts of the case.
    4th. But even if all objections to the admission of the affidavit and the secondary evidence were waived, still the action, at law, was not maintainable. The remedy is in equity, if the plaintiff were the proper person to sue, which he is not. 3 Cow. 303. 10 Johns. 104. 14 Eng. Com. L. R. 20. 5 Johns. 54. 16 Eng. Com. L. R. 431. 3 lb. 55. 7 lb. 443. The case of Remier v. The Bank of Columbia, 9 Wheat. 81, was decided by a minority of the court, Justice Story dissenting ; and Justices Marshall, Washington, and Duvall not sitting. It cannot be regarded as authority.
   Mr. Chief Justice Shahkey

delivered the opinioh of the court. Black instituted this suit on a promissory note, alleging an indorsement to his intestate, and the defendant, Davis, pleaded non assumpsit. In support of the issue the plaintiff read the declaration, and offered in evidence his own affidavit, made before a justice of the peace, in which he describes the note particularly, and avers that it has been lost, to the admission of which the defendant objected, as incompetent to support the issue, but the court permitted it to be read. This objection would have been well taken, if there had been no other evidence to support the issue; but it was proper evidence to be addressed to the court, to lay the foundation for proof of the contents. ■ If a paper, which it is necessary to use in evidence, has been lost, the party to the suit, if he were the holder of such paper, is generally a competent witness to testify to the loss alone. This rule of course has its exceptions, or at least there are cases in which the party will not be permitted to give parol evidence of the contents, notwithstanding the loss. If, for instance, he destroyed it himself, with a view to let in parol evidence. And as a party to the suit can testify only to the single fact of loss, his affidavit of that fact has often been received. 3 Phil. Ev. (Cow. & Hill’s notes) 1217, 1218, 1219. Taylor v. Riggs, 1 Peters, 591. The evidence of loss is addressed to the court, in order to show the reason for allowing secondary evidence to go to the jury. A party cannot prove the contents of a lost instrument by his own oath, and yet it is difficult to imagine how the loss of an instrument could be established, unless the party was permitted to give some description of it. That portion of the affidavit, which describes the amount of the note, was not proper evidence for the jury, nor indeed was any part of the affidavit. But Garrett, a witness for the plaintiff, testified that he transferred the note declared on to Sadler & Black, either by delivery or by blank indorsement. Now although he says nothing of the amount of the note, or the time of payment, in so many words, yet he does so in effect, by speaking of the note declared on, thus describing it by reference to the declaration, and by that means fixing the amount and date, and time of maturity. A note differing in any material particular, would not have been the note declared on. Another witness testified, that after the note declared on became due, he had a conversation with the defendant about it, in which he promised to pay it. This testimony must be regarded as fully establishing the contents of the note. Under this state of proof should the judgment be reversed, because the affidavit was improperly admitted? In the case of Barringer v. Nesbit, 1 S. & M. 22, improper evidence was permitted to go to the jury on the part of the defendant, who obtained a verdict. On error brought by the plaintiff, we held that although improper testimony had been permitted to go to the jury, we would not for that reason reverse the judgment, if there was also sufficient legal testimony to justify the verdict. In that case, as in this, there was exception taken to the evidence when it was admitted. We held, however, that this rule would not apply in doubtful cases; but in this case there can be no doubt, but what the contents of the note were satisfactorily shown, without the affidavit, and the authority is therefore decisive.

The only remaining point which is fairly presented is an objection taken to the instruction of the court, given at the instance of the plaintiff, which was, that if Davis, after the loss of the note, had promised to pay the plaintiff, then they should find for the plaintiff. To understand the object of this charge, it is proper to observe that one of the witnesses had testified that he had indorsed the note to Sadler & Black. The use sought to be made of this testimony was to defeat the action, by showing the property in the note to be in Sadler & Black, instead of Black alone, who was the plaintiff’s intestate. And accordingly the defendant had previously asked the court to instruct the jury, that if the note was assigned to Sadler & Black, and that T. M. Black had no assignment of it, they should find for the defendant, which instruction the court gave. To establish ownership, then, must have been the object in resorting to this promise; it could have been useful for no other purpose. Considered in this light, the charge of the court seems to have been correct. Amongst the many purposes for which a subsequent promise is resorted to, one is that it dispenses with proof of title, and relieves the plaintiff from proving the several indorsements. Bourangent v. Anderson, 6 Esp. Rep. 43, cited in Tibbetts v. Dowd, 23 Wend. 379. This promise was, of course, but prima fade evidence of ownership, and might have been rebutted, but there was no rebutting evidence. The in-dorsement of Garrett to Sadler & Black was made in blank, prior to the promise, and that indorsement was not inconsistent with Black’s title. Sadler may have transferred his interest without indorsement, in which case it was proper (or any subsequent holder to declare as the immediate assignee of Garretfi To counteract the charge which had been given for the defendant, this charge was properly asked, and we cannot say that there was error in giving it. It is said that this promise was conditional, and therefore amounted to nothing. The witness was the plaintiff’s attorney, and said that the defendant promised to pay on the first conversation. He subsequently required an indemnifying bond, which was prepared, but the defendant then informed him, that he would neither take the bond nor pay the debt.

The judgment must be affirmed.  