The suit was commenced originally by a warrant before a Justice of the Peace, by the plaintiff's testator, and came up by successive appeals to this Court. On the trial before the Justice of the Peace, the plaintiff's testator made the following affidavit:
"William Grant maketh oath, that John Reel, late of McDowell county, was indebted to him in the sum of forty dollars; that, on the 5th day of May, 1848, he, the said Reel, executed his note to affiant, due one day after date, for forty dollars, as evidence of said indebtedness. Affiant swears that the note has been mislaid or lost."
He also swore, in another affidavit, "that the note had not been negotiated or assigned by him, but was justly owing to him by the defendants." These affidavits were offered on the trial in the Superior Court, and objected to by the defendant, but received by the Court, subject to the question reserved.
The plaintiff's intestate having died, and the present plaintiffs, his executors, having, in the mean time, been made parties, they made the further affidavit, "that they had made diligent search for the note, and could not find it," which was also objected to, but received by the Court, on the terms above stated. Upon this and other evidence, the cause was submitted to the jury, under an agreement that the questions above stated should be reserved for his Honor's consideration, with leave to set aside *Page 513 the verdict and enter a non-suit, if rendered for the plaintiffs. The jury found the verdict for the plaintiffs.
Afterwards, his Honor, having considered the questions reserved, and being of opinion with the defendants, ordered the verdict to be set aside, and a non-suit of the plaintiffs entered. From which judgment the plaintiffs appealed to this Court. We are informed by the counsel for the plaintiffs, that this appeal was taken before the case of CHAUNCY v. BALDWIN, decided at the last December Term, (see ante. 78,) was reported. We think that the present case is substantially the same with that, and must be governed by it. The affidavit of the plaintiffs' testator, that the note sued on had not been assigned nor negotiated by him, was inadmissible as testimony, and cannot therefore make any difference. The loss or destruction of a note or bond, is the only fact which the party's own affidavit is admissible to prove, and that only for the purpose of giving jurisdiction to the Court of Equity, and of admitting secondary evidence of the contents of the note or bond, in the Courts either of law or equity.
Judgment affirmed.