the contract of the parties, and supplies the place of any implied promise arising out of the borrowing of the money, and that the alteration of the note, however innocently made, deprives the plaintiff of any right to recover upon the original consideration. We believe the better doctrine to be opposed to this view. In Krause v. Meyer (32 Iowa, 569) both parties conceded that if the alteration was innocently made the plaintiff might recover upon the consideration of the note. Because of this concession the point was not determined in that case. In Vogle et al. v. Ripper (34 Illinois, 100), which was an action to foreclose a mortgage executed to secure notes which had been altered so as to draw ten instead of six per cent, the following language is employed: "In a court of equity a mortgage is regarded as an incident of the debt, and, where a mortgagee has released or discharged the debt by a fraudulent alteration or destruction of the written evidence of it, he ought not to be permitted to sustain a suit for its recovery; but where the alteration was not fraudulent, although the identity of the instrument may be destroyed, we think it should not cancel the debt, of which the instrument was merely the evidence. If there was no attempt to defraud, there is no reason why a court should not assist the creditor so far as it can consistently." In this case there was a decree for the sum due, and foreclosure of the mortgage. See also Matteson v. Ellsworth, 33 Wis. 488. In Parsons on Notes and Bills, Vol. 2, p. 572, respecting alterations of notes innocently made, it is said: "And though it is true that an avoided note destroyed innocently by a material alteration cannot even be the evidence of the original debt, it does not destroy the debt. The debt is still. obligatory, and may be recovered by a suit on the original cause of action." The case of Wheelock v. Freeman (13 Pickering 165), upon which appellants rely, was decided upon the ground that the alteration was fraudulent. It is claimed that the court erred in decreeing the foreclosure of the mortgage, the note, which it was executed to secure, having been rendered void by a material alteration. We think this action of the court was right. See Vogle v. Ripper, 34 Illinois 100; Sloan v. Rice, 41 Iowa 465. Affirmed. Loss. BLADE v. NOLAND. 12 Wendell 173 (N. Y.). 1834. Error from the Jefferson common pleas. Noland sued Blade in a justice's court, and declared on a note destroyed or lost, and for work and labor. The defendant pleaded the general issue and gave notice of set-off. The plaintiff called a witness, and proved by him that the defendant previous to 4th of March, 1832, gave the plaintiff a note for $24.80, payable in three months, for wages due to him for work done for the defendant. The plaintiff himself was then sworn, to prove the loss of the note, and testified that he burnt it up the next morning after it was given. A witness called by the defendant also gave testimony tending to show that the note was burnt by the plaintiff on the day after it was given. There, however, was proof that the note was in existence subsequent to the day on which the plaintiff alleged it was destroyed. There was also evidence of payments by the defendant on account. The justice rendered judgment in favor of the plaintiff for $18, besides costs. The common pleas of Jefferson, on certiorari, affirmed the judgment of the justice. The defendant sued out a writ of error. NELSON, J. I concede the rule insisted on by the counsel for the plaintiff below, to the fullest extent, borne out by the authorities, and they are numerous; and still am of opinion that the plaintiff did not give such proof of the loss of the note as to justify the secondary proof of its contents, or to entitle him to resort to the original consideration. If there had been satisfactory proof of the loss or destruction of the note, the omission to give a bond of indemnity under the statute (2 R. S. 406, §§ 75, 76) would not have interfered with the recovery; for the provision of the statute on this subject is limited to negotiable paper. There is no evidence that the note in question was negotiable, and it seems to be settled that the court will not presume a lost note to be negotiable. 10 Johns. R. 104; 3 Wendell 344. The proof is, that the plaintiff deliberately and voluntarily destroyed the note before it fell due, and there is nothing in the case accounting for, or affording any explanation of the act, consistent with an honest or justifiable purpose. Such explanation the plaintiff was bound to give affirmatively, for it would be in violation of all the principles upon which inferior and secondary evidence is tolerated, to allow a party the benefit of it who has wilfully destroyed the higher and better testimony. The danger of this very abuse of a relaxation of the general rule greatly retarded its introduction into the law of evidence, and it was for a long time confined to a few extreme cases, such as burning of houses, robbing, or some unavoidable accident. It was contended by Chancellor Lansing, in the case of Livingston v. Rogers (2 Johns. Cas. 488), after an examination of all the leading cases on the subject, that secondary evidence was not admissible to prove the contents of a paper, where the original had been lost by the negligence or laches of the party or his attorney. He failed to convince the court of errors to adopt his views in a case where the negligence was not so great as to create suspicion of design. Further than this I could not consent to extend the rule. I have examined all the cases decided in this court, where this evidence has been admitted, and in all of them the original deed or writing was lost, or destroyed by time, mistake, or accident, or was in the hands of the adverse party. Where there was evidence of the actual destruction of it, the act was shown to have taken place under circumstances that repelled all inference of a fraudulent design. 2 Johns. Cas. 488; 2 Caines 363; 10 Johns. R. 374, 363; 11 Id. 446; 8 Id. 149; 3 Cowen 303; 8 Id. 77; 3 Wendell, 344; Peak's Ev. 972 (Am. ed.); 10 Co. 88, Leyfield's case; 3 T. R. 151; 8 East 288, 9; Gilb. Ev. 97. In Leyfield's case Lord Coke gives the obvious reasons why the deed or instrument in writing should be produced in court: 1. To enable the court to give a right construction to it from the words; 2. To see that there are no material erasures or interlineations; 3. That any condition, limitation, or power of revocation may be seen; for these reasons oyer is required in pleading a deed. But he says, in great and notorious extremities, as by casualty of fire, etc., if it shall appear to the judges that the paper is burnt, it may be proved by witnesses so as not to add affliction to affliction. The above is in brief the foundation of the rule in these cases of secondary proof of instruments in writing, and it has been much relaxed and extended in modern times from necessity, and to prevent a failure of justice; yet I believe no case is to be found where, if a party has deliberately destroyed the higher evidence, without explanation showing affirmatively that the act was done with pure motives, and repelling every suspicion of a fraudulent design, that he has had the benefit of it. To extend it to such a case would be to lose sight of all the reasons upon which the rule is founded, and to establish a dangerous precedent. We know of no honest purpose for which a party, without any mistake or misapprehension, would deliberately destroy the evidence of an existing debt; and we will not presume one. From the necessity and hardship of the case, courts have allowed the party to be a competent witness to prove the loss or destruction of papers; but it would be an unreasonable indulgence, and a violence of the just maxim that no one shall take advantage of his own wrong, to permit this testimony where he has designedly destroyed it. Judgment reversed. INDEX Prepared by F. W. SCHENK (The figures refer to those at the foot of the pages.) Abstract of Title, contract for an, need not be in writing, 458. acceptor not bound by terms not included in offer, 386. when offer was made by telegram, 380. essential to a contract, 365. evidence of the, 525. how made, 391, 392. must be an act which is manifested externally, 391. must not vary from terms of offer, 381, 382, 390. offer and, 376-395. offerer irrevocably bound after, 379, 388. offer so made as to be capable of several ways of, 383, 384. who may accept offer, 393. Accidents, inadequately treated under the rules of the common law, 135. Accord and Satisfaction, defined, 441, 442, 609, 610. accord without satisfaction, 609. discharge of contract by, 609-611. Account, matters of, in action at law may be referred to an auditor, 245. Actions, abolishment of the distinction between law and equity, 165. against states or the United States, 208, 229, 306-308. between aliens and citizens in federal courts, 230, 249. between citizens of different states in federal courts, 222, 223, 230, 249, 285-287. between citizens of same state in federal courts, 28, 283, 285, 286. |