
    
      Robert Cathcart vs. Jacob Gibson.
    
    1. In an action brought by one of two indorsers on an accommodation note against the other for contribution, the note having been discounted in - bank, and, after protest for non-payment, paid by the first indorser, evidence was received of the contents of a letter written by both indorsers, to the president of the bank at which the note had been discounted, acknowledging a joint liability, and asking indulgence; that the letter had been searched for by the president, without being found. This testimony held inadmissible.
    2. Where the possession of a lost paper is traced to the party who would offer secondary evidence, he must of necessity be allowed to adduce, in making prima facie proof of loss, the testimony of other persons, that search had been made in all proper places ; but no such necessity requires inferior evidence of ineffectual search, where the possession has been traced to a person who may be a competent witness.
    
      jBefore O’Neall, J. Fairfield, Extra Term, Feb. 1844.
    This was a suit brought by one of two endorsers against the other, for a contribution. The note of which they were endorsers was that of Alexander Rosborough. It was wholly an accommodation note. The plaintiff, Cathcart, was the first endorser, and the defendant the second.
    When the note was protested for non-payment by the maker, the plaintiff, and defendant conversed together in the presence of James Cathcart; each, he said, was willing to pay one half of the note. The defendant said he was willing to pay half the note. * Twice afterwards he said he was willing to pay half. A letter addressed by the plaintiff and defendant to John A. Crawford, president of the Commercial Bank, where the note was discounted, was proved to have been searched for by Mr. Crawford, and that it could not be found. It was then permitted to be proved that this letter was jointly written by plaintiff and defendant, admitting their joint liability, and requesting indulgence. The note was paid by the plaintiff.
    The defendant would have proved by David Aiken, that, a note drawn by Rosborough, and endorsed by Cathcart, was presented by Rosborough to him to be endorsed; that then Rosborough held Cathcart’s note for $1500, and said Cathcart was to pay the note in bank. The testimony was excluded.
    The jury were told, that unless the defendant had agreed with the plaintiff when they endorsed, to be with him jointly liable for the note, the plaintiff could not recover. That they might infer such understanding from the defendant’s declarations after the note was protested. The jury found for the plaintiff.
    The defendant appealed for a new trial, on the following grounds.
    1. Because the court permitted parol evidence to be given of the contents of a letter addressed and sent by the parties to Mr. John A. Crawford, president of the Commercial Bank, without legal proof of its loss.
    2. Because the court rejected, as irrelevant, the evidence of Mr. David Aiken, who was offered as a witness to prove that when Alexander Rosborough applied to Aiken to endorse the note, (Robert Cathcart having previously endorsed,) he, Rosborough, held a note of said Cathcart, for fifteen hundred dollars, and represented that said Cathcart, in consideration of his note to Rosborough, was to pay Rosborough’s note to the bank.
    3. Because the declaration of the defendant, as proved by Mr. James Cathcart, “that he was as much liable as Robert Cathcart on the note,” or “equally liable with him on the note,” was not sufficient in law to sustain plaintiff’s action, «due regard being bad to the time and.circumstanc.es under which that declaration was made. The note at that time being under protest, and the money due to the bank, and not to Robert Cathcart, defendant’s liability was to the bank, and he could not have meant any liability to Cathcart; and the more especially as he, defendant, in that interview, refused to divide the note, and take upon himself the payment of one half thereof.
    4. Because the verdict of the jury is contrary to law and the evidence.
    
      Mr. McDowell, for the motion,
    cited, on the first ground, 3 Phillips’s Ev. 1226 ; 1 N. & McC. 33.
    
      W F. DeSaussure, contra.
   Curia, per

Wardlaw, J.

Mr. Crawford, to whom the letter mentioned in the first ground of appeal was addressed, was not himself examined ; but that he searched for it, was proved by another witness. This was no more than hearsay evidence that he could not find it, depending at most upon his declarations by word or act. Although no such thing would be imputed to Mr. Crawford, another person in like case might make much show of search, and declare that he could not find the paper, whilst, at the same time, he knew where it was hid, and success without risk would be given to his falsehood, if his oath should be dispensed with.

Starkie, in his Treatise on Evidence, 1 vol. 352, says: “In general, the loss of a paper must be proved by the person in whose hands it was at the time of the loss, or in whose custody it has been traced.” In Rex vs. Castleton, 6 Term, 236, the court thought it too clear for argument, that the loss of an indenture was not established by proof that it had been delivered to Miss Taylor, and that when applied to, she said that she could not find it, and did not know where it was, she herself being disinterested, and not appearing to give account of the loss.

In Parkins vs. Cobbett, 1 Car. & Pay. 282, to shew the loss of a letter, the defendant’s son proved that as soon as the defendant received it, he gave it to his daughter to take care of, as was his practice with all his letters, and that the witness and his sister had searched in all the places where the defendant’s letters were kept, and could not find it. Best, C. J. held, that in all cases, the best evidence of the loss that the case admits of, must be given; and that the letter having been traced to the daughter, the secondary evidence could not be admitted without her testimony. In that case the distinction is suggested which must prevail wheresoever the oath of a party to the suit is not itself admitted to establish the loss ; that is, where the possession has been traced to the party who would offer the secondary evidence, he must, of necessity, be allowed to adduce, in making prima facie proof of loss, the testimony of other persons, that search had been made in all proper places; but no suph necessity requires inferior evidence of ineffectual search, where the possession has been traced to a person who may be a competent witness.

The motion for a new trial is, therefore, granted.

Richardson, O’Neall, Evans, Butler and Frost, JJ. concurred.  