
    Laurens Sims against James Sims.
    Action on a the existence,and that he had assistcd the plaintiff in S'pápeK™^ toma. Hen not sufficient to mainth«io»aaaami£ sible.
    This was an action of assumpsit on a note . A mi • hand, which was alleged to be lost. The exist-Pit j iij *i ence oi the note was proved by two witnesses, ^ J t one of whom had seen it in plaintiff’s possession. He afterwards assisted again in examining his ° 0 papers, and it could not be found. The cause was brought on for trial at Pendleton, Fall Term, 0 ' 1817, before Mr. Justice JYott, who ordered a nonsuit, on the ground that the loss of the note was not sufficiently proved. A motion was now made to set aside the nonsuit, on the ground that there was sufficient evidence of the loss of the note to be submitted to the Jury.
   The opinion of the Court was delivered by

Mr. Justice Nott.

In order to let in parol evidence of the contents of a written instrument, proof of its existence and loss must first be given. There was sufficient evidence of the existence of the note in this case; but there was no evidence of the loss. The witness, to be sure, said he examined the plaintiff’s papers, and could not find it. But that was no evidence of its loss. It might have been in his pocket; it might have been paid ofi^ and taken up. The oath of the plaintiff was offered to prove the loss. But that question has-been long settled by a solemn decision of this Court. In the case of Ross and M-Cartan it was determined, after two full arguments, that a party, interested in a cause, could not be a witness, to prove the loss of a paper essential to the issue.

oantt,contra.

The motion must, therefore, be refused.

Grimke, Colcock, Cheves, and Johnson, J. coni curred.

JVTr. Justice Gantt,

dissenting, gave the following opinion:

I think the proof of loss was as strong as could, in most cases be adduced, and was entirely satisfactory on the point.  