delivered the opinion of the Court.
In this case, issue having been joined between the parties, the plaintiff, on trial, proposed to show to the Court, by his own testimony, the loss of the bond declared upon, for the purpose of introducing secondary testimony, in support of the action. The Court having rejected the testimony of the party, a non-suit was entered, and the motion now is, to set aside the non-suit.
It is a general rule of the common law, that a party in the suit, cannot be a witness for himself. This is a safe and salutary rule, and ought not to be departed from. But it is said, that although the party cannot be a witness in chief, he may testify to collateral facts, and thereby lay the foundation for the introduction of secondary testimony; and the cases in which the oath of the party has been admitted, to prove the absence or death of the subscribing witness, so that other testimony of the execution of the instrument might be given, are relied upon. If these cases form an exception to the general rule, it furnishes no ground for making a further exception, unless the cases are, in principle, strictly’analogous.
The testimony of any other than the subscribing witness is not inferiour in its kind, to the testimony of the subscribing witness himself. If such witness, when called to prove the execution of the instrument, should deny it, and should testify that the hand writing was not his, or not that of the party, his testimony is not conclusive. The plaintiff is then at liberty to prove the execution, &c. by other testimony. — Doug. 216.
The testimony proposed to be given in this case, (should the party testify to the loss of the bond) is in its kind, inferiour to the instrument itself. No testimony can be admitted, to con*99tradict the writing — it is upon that alone the cause is to be decided.
J. C. Thompson, for the plaintiff.. Chs. Adams, for the defendant.I find no authority to justify the position, that the loss of the instrument is a preliminary question, to be decided by the Court; and from the case in the 3 Term, Rep. 151, the contrary is to be inferred. In some of the states, it has been decided, that this is a preliminary question, and that the party may testify to the loss, or destruction of the instrument, or writing. That the rule at common law is otherwise, I think cannot be doubted ; and this rule has been adhered to in several of the states, nor has it, as we believe, been departed from here; and we are not at liberty to decide contrary to the well known settled principles of the common law : the legislature have adopted it as the law of the state.
All the reasons that induced the adoption of the general rule, that a party should not testify for himself, will apply with full force to the present case. The evidence of payments upon bonds, or notes, usually rests upon endorsements made thereon ; and when satisfied, they are destroyed. It would be as much for the interest of the party, to testify to the loss of a note, or bond, upon which payments have been endorsed, or that has been satisfied and destroyed, as to testify directly to the loan of so much . money, or to any contract for the payment of a like sum ; and his credit is as much to be suspected in the one case, as in the other. Rule discharged.
Hutchinson, J.I feel it my duty to express myself so far opposed to the opinion now delivered by the chief justice, as to be at liberty further to investigate the subject; as I understand it will come before us in other counties: though I acknowledge much force in the reasoning now adopted, in relation to those instruments, and upon which payments may probably be endorsed.