
    *Colley’s Adm’r v. Sheppard’s Adm’r.
    January Term, 1879,
    Richmond.
    In an action of debt upon a bond by C’s administrator against S’s administrator, profert of the bond is excused on the ground that it was lost by accident. S’s administrator pleads payment, and special pleas in which he avers that the bond was not lost or destroyed by accident, but was destroyed by the obligee in her lifetime, with the intention and for the purpose of releasing S from the payment of the debt, and this he is ready to verify; and issues were made up on the pleas. On the trial of the cause the defendant insists the plaintiff should first prove to the satisfaction of the court the original existence of the bond and its loss, and it was agreed that all the evidence in the cause shall be heard, and the defendant may move to exclude if; and on his motion all the evidence was excluded — Held :
    1. Pleading: — Confession.—Every pleading is taken to-confess such traversable matter on the other side as it does not deny. The pleas, therefore, confess the original existence of the bond as described in the declaration and its destruction. There was, therefore, no necessity on the plaintiff to prove to the satisfaction of the court the original existence and loss of the bond before receiving testimony as to its contents.
    2. Same — Question, for Jury. — If the pleas . put in issue the loss of the bond, then that issue must be tried by the jury; and if there was evidence introduced before the jury bearing on the question of the loss of the bond, it was for the jury to decide upon the sufficiency of the evidence to establish the loss; and it was error in the court to exclude it.
    3. Same — Decision in This Case. — If it was incumbent on the plaintiff to prove the original existence and the loss of the bond, before proving its contents, the evidence was sufficient in this case.
    This was an action of debt upon a bond brought in March, 1860, in the circuit court of the city of Richmond *by William L. White, Jr., as administrator of Nancy Colley, deceased, against Joseph M. Sheppard. The declaration set out a bond for $723, bearing date the 8th of January, 1856, payable on demand, executed by Sheppard to Nancy Colley in her lifetime, which having been lost by accident the plaintiff could not make profert thereof.
    In May, 1860, Sheppard demurred to the declaration, and the plaintiff joined in the demurrer. And no further proceedings seems to have been taken in the case until December, 1865, when a scire facias was issued to revive the suit against Thomas Pollard, personal representative of Sheppard. And the case was continued from time to time until June, 1873. At the June term, 1873, the court overruled the demurrer, and the defendant pleaded payment, and tendered three special pleas, to which the plaintiff objected. The court sustained the objection to the first special plea, but overruled it as to the second and third. The plaintiff replied generally to the two special pleas, and the plea of payment; and issues were made up upon these pleas.
    The defendant did not except to the opinion of the court respecting the first special plea; but the plaintiff excepted to the admission of the second and third of these pleas. The pleas are as follows:
    First plea. And the said defendant, by James Lyons, his attorney, comes and defends the wrong, &c., and says that the plaintiff ought_ not to have or maintain his action against him, because he says that the said bond in the declaration mentioned has not been lost or destroyed by accident, as the plaintiff has in his c'-'claration stated, and of this he puts himself pon the country, &c.
    Second plea. And for a further plea in this behalf, this defendant says that'the plaintiff ought not to have or maintain his action against him, because he says that the *writing obligatory mentioned in the declaration was not lost or destroyed by accident, but was destroyed by the obligee in the said writing obligatory, with the intention and for the purpose of releasing the said Joseph M. Sheppard from the payment of the debt mentioned therein, and this the said defendant is ready to verify; wherefore he prays judgment, &c.
    Third plea. And for a further plea in this behalf, the said defendant says that the said plaintiff ought not to have or maintain his action against him, because he says that the writing obligatory mentioned in the declaration was not lost or destroyed by accident, but was destroyed by the obligee in the said writing obligatory, with the intention and for the purpose of releasing the said J. M. Sheppard from the payment of the debt mentioned therein, and therefore the defendant says that the said Nancy Colley released and discharged him from the said obligation and from the payment of the said sum of money in the writing obligatory mentioned, and this he is feady to verify; wherefore he prays judgment, &c.
    The cause came on to be tried at the same term of the court. After the jury was sworn, and the plaintiff introduced his first witness, j the counsel for defendant stated that they should insist that the plaintiff should first | prove the original existence of the bond j referred to in the declaration, and thereafter its loss; and that upon this question the j evidence should be addressed to the court, and the fact of the existence and loss of the bond established to the satisfaction of the court before any secondary evidence of its contents could be presented to the jury; after which the examination of witnesses was permitted to proceed before the court and the jury, with a reservation to the defendant of the right to move to exclude the evidence from the consideration of the jury, upon the ground of its insufficiency to establish the facts "necessary to entitle the plaintiff to introduce secondary evidence of the contents of the said bond.
    The trial then proceeded. The plaintiff and a number of witnesses were examined on his behalf, and also one for the defendant; and when all the evidence had been submitted to the jury, the defendant moved the court to exclude all the evidence which had been offered from the consideration of the jury, upon the ground that the evidence was not sufficient to establish the loss of the bond, so as to enable the plaintiff to introduce secondary evidence of its contents. This | motion the court sustained, and excluded the evidence. And the plaintiff excepted^ setting out the evidence in his bill of exceptions.
    There was a verdict and judgment for the defendant, and thereupon the plaintiff applied to a judge of this court for a writ of error and supersedeas; which was awarded. The view taken of the evidence bv th;s court is presented in the opinion of STAPLES, J.
    Jno. B. Young and C. White, for the appellant.
    Wm. W. Crump and Bev. T. Crump, for the appellee.
    
      
      Pleading' Payment — Confession and Avoidance. — The principal case was cited in Norvell’s adm’r v. Little, 79 Va. 141, to support the proposition that the plea of payment is a confession and avoidance, and concludes the party from denying the execution of the deed as set forth in the pleadings.
    
   STAPLES, J.,

delivered the opinion of the court.

This is an action of debt brought in the circuit court of Richmond city on a bond executed by Joseph M. Sheppard on the 8th January, 1856, to Nancy Colley, the plaintiff, intestate. The declaration avers that the bond having been lost by accident the plaintiff cannot produce the same in court. The defendant pleaded payment, and he also tendered three special pleas in writing, to the filing of which the plaintiff objected. The court sustained the objection to the first plea, and overruled it as to the second and third pleas. And thereupon the plaintiff replied generally *to the special pleas and to the plea of payment. The special pleas allege in substance that the bond was not lost or destroyed by accident, but was destroyed by the obligee in her lifetime with the intention and for the purpose of releasing the defendant from the payment of the debt; and the defendant was thereby released and discharged from the obligation and from the payment of the debt therein mentioned. After the jury was sworn, and the plaintiff had introduced his first witness, the counsel for the defendant stated they would insist that the original existence of the bond and its loss should be established to the satisfaction of the court before secondary evidence of its contents could be offered to the jury. This being understood, the examination of the witnesses was proceeded with, subject to the right of the defendant to move to exclude the evidence from the jury.

After the testimoney was concluded on both sides the defendant submitted his motion to exclude the evidence, upon the ground that it was not sufficient to establish the loss of the bond, so as to enable the plaintiff to introduce secondary evidence of its contents. This motion was sustained by the court, and the evidence excluded; to which the plaintiff excepted. And thereupon the jury rendered a verdict for the defendant.

The only question we have to consider is whether the court erred in this ruling. It may be well to premise that at common law, when an action is brought upon a bond or other writing obligatory, the plaintiff is required to make profert of the instrument; that is, to bring it into court. The object of the profert is to enable the court to inspect the writing and to see that it is a good deed, and to put it in the power of the defendant to examine it, and that he may see if it be really his deed, and plead non est factum if it is not. *Tf, however, the bond has been lost or destroyed by accident, or by the defendant himself, or be in his possession, and the fact be set forth in the declaration, it will be a good excuse for not making profert. When the plaintiff alleges the loss of the instrument, he is required to give some evidence that the paper once existed, and that a bona fide and diligent search has been unsuccessfully made for it in the place where it was most likely to be found, if the nature of the case admits of such proof. The object of the proof is merely to establish a reasonable presumption of the loss of the instrument; and this is a preliminary enquiry addressed to the discretion of the court, and not to the jury. This rule is founded on the idea that the writing itself is the best evidence of the agreement of the parties; and if one of them be permitted to hold back the original when he could produce it, and substitute for it secondary evidence, the door would be opened not merely to mistakes, but to the grossest frauds. Greenl. on Evidence, § 558. It is, however, obvious that the parties may, by their form of pleading, not only dispense with all proof of the existence and contents of the instrument, but they may supersede the necessity of adducing the preliminary proof of its loss, usually required in such cases. Every pleading is taken to confess such traversable matter on the other side as it does not deny. The plea of release, or payments, admits the execution of the deed, as set forth in the declaration, and concludes the party from denying and the jury from finding against the fact. Stephen on Plead. 90, 207; 2 Tucker Com. 212. The plea of release, or payment, is therefore a plea in confession and avoidance. It confesses the original cause of action, as charged in the declaration, and relies upon affirmative matter in avoidance. In the case before us. the special pleas ^already mentioned admit the bond as described in the declarations, and they set up a release of the debt by a destruction of the instrument by the obligee. Both - pleas conclude with a verification and a prayer of judgment. The plaintiff replies generally, putting himself on the country, and the defendant adds the similiter. Pleas of this sort are necessarily in confession and avoidance. They put the onus probandi upon the defendant, and they give him the right to open and conclude. Young v. Highland, 9 Gratt. 16. The same thing is true with reference to the plea of payment.

It is very true that the special pleas also contain a denial of the loss of the bond, but we do not understand the defendant thereby intends to insist that the bond was in existence when the suit was brought, or the plea pleaded, and to raise a distinct issue upon that point. What he means is to affirm the destruction of the instrument by the act of the obligee, as distinguished from its loss or destruction by accident. If this is not a correct construction of the pleas — if they are to be construed as denying the loss of the bond, and thereby, in effect, affirming it is in existence — they are inconsistent with themselves, for the gravamen of the defence is the destruction of the bond. We have here then a case in which both parties are agreed as to the contents of the bond; both admit it no longer in existence, and the utter impossibility of producing it; and yet the court excludes all the evidence relating to the bond, because the proof of loss is not sufficient to let in evidence of its contents. Secondary evidence is rejected in this class of cases upon the idea that the writing is in the possession of the party claiming under it, or within his control, and may be purposely withheld. But surely no such presumption can arise when both parties assume that the paper is no longer in existence. Ordinarily the *plaintiff must show that he has made bona fide and diligent search for the instrument. But it is difficult to see of what advantage the most diligent search can be when the defendant himself admits the destruction of the bond and bases his claim to a discharge upon that very ground.

It will be understood, of course, that what has been already said has reference to the issues joined,, and to the case as it was presented to the circuit court when the motion was made to exclude the evidence. No evidence had been offered upon the plea of payment. There was no pretence of any payment, and it is apparent that plea had been filed merely as a matter of form. The real and only matter of controversy was whether the obligor had been released from the payment of the debt in the manner claimed in the two special pleas, and this the defendant averred he was ready to verify.

But if we are mistaken altogether in the view presented, if the pleas are to be construed as negativing the loss of the bond, and as presenting a distinct issue upon that point, and thereby imposing upon the plaintiff the onus of showing the loss, then the question was one for the jury and not for the court. When the plaintiff alleges the loss or destruction of the bond by accident, it is merely an excuse for the omission to produce it in court, and to enable him so prove its contents; and, as already stated, this is a matter for the determination of the court. But the defendant may, if he pleases, by plea controvert the loss of the bond, and he may traverse the excuse for the omission of a proferí. The counsel for the defendant have themselves produced the authorities for this, some of which may be found in 1 Chitty on Plead. 379, and note; Poreh v. Cresswell, 14 Eng. Law & Equity R. 385; South Paddock v. Higgins, 2 Root R. 482.

^Whether a plea of this sort is a plea in bar or in abatement, is a question not free from difficulty. The point does not arise in this case, and we need not answer it. A traverse necessarily involves an issue of fact to be tried by a jury, as any other issue in the case. The-testimony adduced by the plaintiff bore directly upon the question of the loss of the instrument, and whether it was sufficient for the purpose was a question to be determined by the jury, and not by the court. Upon the most familiar principles the weight of the evidence is a matter for the jury exclusively. When, therefore, the circuit court excluded all the evidence upon the ground stated, it violated this principle and invaded the province of the jury.

But discarding this view entirely, we are of opinion that a sufficient foundation was laid to warrant the court in receiving secondary evidence of the contents of the bond. It was in proof that Mrs. Colley died in the year 1857. This suit was brought in 1860 by her administrator, and was tried in 1873 — sixteen years after the death of the obligee. During all this time the bond has been missing. The administrator, who was examined as a witness, did not find it among the papers of his intestate; he has never seen it or had it in his possession. ' It seems that Mrs. Colley died at the house of Andrew MeDonell, where she had resided a short time. Mc-Donell was dead when the case was tried. It was proved, however, he had possession of some of her papers; whether the bond was among them it is not material for us now to enquire. lie certainly made a careful search for the missing paper in his house after the death of Mrs. Colley, and failed to find any trace of it. In addition to this evidence, every person with whom this lady lived, or who had ever had possession of her papers, was examined as a witness, with the exception of a *Mrs. Frazer; and it appeared that none of them could give any information of the bond. So far as Mrs. Frazer is concerned, the circumstances detailed by the witnesses exclude the idea that she could have thrown any light on the subject.

It must be borne in mind that the party setting up the instrument is only bound to establish a reasonable presumption of its loss. When a person with whom the obligee has lived and died, after a careful search, has been unable to find any trace of the paper— when the administration the legal and proper custodian, has never seen it, and can give no account after exhausting all the sources of information accessible to him, and when sixteen years have elapsed since the death of the obligee, and the bond is still missing, it may be fairly presumed that it is not in existence. In practice, when there is no ground of suspicion that the paper is intentionally suppressed, nor any discernable motive for deception, the courts are extremely liberal in regard to secondary evidence. The rule must be so applied as to promote the ends of justice and guard against fraud and imposition. If the circumstances justify a well-grounded belief that the original paper is kept back by design, no secondary evidence ought to be admitted; but where no such suspicion attaches, and the paper is of that description that no doubt can arise as to the proof of its contents, there can be no danger in admitting secondary evidence. This is the rule laid down in Cowen & Hill’s notes to 4 Phillips on evidence, 1223, and approved by this court in Corbett v. Nutt, 18 Gratt. 624.

Here there can be no possible doubt of the contents of the paper; and so far from there being any suggestion that it is in existence and kept back by design, the defendant himself claims that the bond has been destroyed. In every view that may be taken the court ’"'erred in excluding the evidence. The whole question was whether the bond had been lost or accidentally destroyed, or intentionally destroyed by Mrs. Colley, with a view of discharging the obligor from the payment of the debt. The evidence adduced on both sides bore directly on this point, and was peculiarly proper for the consideration of the jury. By the form of the pleadings the onus was upon the defendant of showing the release claimed by him; and that was to be done by proof of the destruction of the bond by the obligee; and upon this issue he had the right to open and conclude. Young v. Highland, 9 Gratt. 16.

With respect to the first special plea in writing tendered by the defendant, no exception was taken to the action of the court rejecting it. That plea is, therefore, no part of the record, and we are not at liberty to consider it. Toneray v. White, 9 Leigh, 347.

, Upon the whole, we are of opinion to reverse the judgment of the circuit court, to set aside the verdict, and grant the plaintiff a new trial.

The judgment was as follows:

The court is of opinion, for reasons stated in writing and filed with the record, that the circuit court erred in excluding from the jury the evidence set out in the exceptions of the plaintiff in error. Wherefore, for the error aforesaid, &c. And this court, proceeding to render such judgment as the said circuit court ought to have rendered, it is considered by the court that the judgment of the said circuit court be reversed and annulled, the verdict set aside, and a new trial awarded the plaintiff in error.

Judgment reversed.  