There was no evidence that the distance run was ascertained to be a quarter of a mile; but it was proved that immediately after the race was run the defendant acknowledged that he had lost it, and that the bond was delivered by his direction to the sheriff.
Upon this latter evidence it was left to the jury to decide whether the distance run was a quarter of a mile; but the court did not instruct the jury that any measurement of the distance was necessary to be proved.
The court instructed the jury that no parol evidence was admissible to connect the bond with the agreement; that they must look into the agreement, and consider the description of the bond given by the stakeholder, in order to decide whether the bond declared on be the one which was staked in pursuance of the articles to secure the money bet on the race; that, having decided this point, they would consider whether the race was run according to the articles, with respect to distance, time and circumstances; and whether it was run fairly and according to the usages of racing.
The jury found a verdict for the plaintiff, and a rule for a new trial was obtained and sent to this Court. It has been objected that parol evidence (261) should not be introduced to prove the contents of the bond, because the act of Assembly on this subject declares, "that on every trial an obligation for the amount of the money, etc., bet, shall be produced." That is true, and the Legislature no doubt had it in view to compel parties to produce evidence of higher dignity, as to racing contracts, than before by the rules of law was required. But before that act passed, if the sum bet had been secured by a written obligation, it was incumbent on the plaintiff to produce it. In all cases it is necessary to produce the instrument of writing on which a suit is brought; and this can be dispensed with only where it appears that the instrument has been lost by accident. In such case the production of it is impossible, and the plaintiff may give evidence of its contents. So with respect to the bond in question, the act requires it to be produced; but if satisfactory evidence of its loss by accident be given, parol evidence of its contents may be received. *Page 186
It has been objected that the articles should not be received in evidence, because the contract which they set forth was made some time prior to the date of the articles. Whilst the contract was in parol, it was a nullity; when reduced to writing, it became such a contract as the act of Assembly required, and it was properly received in evidence.
So far the Superior Court acted correctly; but it appears from the case that the plaintiff himself was introduced to prove the loss of the obligation. It is a very general rule that a party shall not be a witness in his own case; and any exception to the rule must be founded in necessity. It is true that the party himself is very frequently the only witness of the loss of a paper, and if there could not be a remedy for him without the aid of his own testimony, it ought to be received from the necessity of the case. In answer to this it may be observed that in such a case a party has a remedy in the Court of Equity, (262) where he will be at liberty to swear to the loss of the obligation; and where the defendant will also be at liberty to make any answer he pleases, upon oath; and where, if a decree be made for the complainant, it will be upon condition that he enter into bond to indemnity the defendant against any demand which may be made against him in consequence of such lost bond. It seems not to be right that the plaintiff shall be permitted to become a witness at law, and not the defendant. Suppose the plaintiff swears at law that he has lost the bond: the defendant will not be permitted to swear that he has paid it, taken it up and destroyed it. The parties ought to stand upon equal grounds. In a court of equity they will both be heard upon oath. The plaintiff can require no more than that he may proceed at law, if he can make out the loss of the bond by disinterested witnesses. If he wishes to become a witness in his own cause, let him bring his suit in equity. Let a new trial be granted.
Cited: McRae v. Morrison, 35 N.C. 48; Chancy v. Baldwin, 46 N.C. 79;Fisher v. Webb, 84 N.C. 45, 6. *Page 187