#### Asa Holdridge v. Lewis Bailey.

Appeal from LaSalle.

1. Onus Frobandi — writing set out. Where a bill in chancery alleges the execution of a bond, which is the foundation of the suit, and the answer denies, or does not admit its execution, it is incumbent on the complainant to produce and file it as an exhibit in the cause, and prove its genuineness; or, if lost, make the necessary proof, by parol, of its genuineness and contents.

2. Evidence — presumption as to record. It is true that exhibits, deeds, and other written instruments, relating to a cause in chancery, may be produced and proved viva voce, on the hearing, where the party using them has omitted to establish their genuineness before the officer taking the proofs. With this exception, the testimony in contested chancery cases, unlike the evidence in cases at law, is in writing, consisting of the depositions of the witnesses, and documentary evidence, and the presumption is, that all the testimony is inserted in the record, especially where the written testimony, which may be proved viva voce, is not placed on the files, (a)

This cause was heard in the court below, at the No- [* 125] vember term, 1840, before the Hon. Thomas Foed.

S. T. Logan, for the appellant.

O. Petees, for the appellee:

The bill recites the bond, and the answer does not deny its execution, but merely states that the defendant does not know that it is correctly recited in the bill. The bond was acknowledged.

Exhibits referred to in, and made part of the bill, are always read at the hearing, without proof of execution, unless there is a direct denial of the execution in the answer. .

To sustain the decision of the circuit, this court will presume that all the facts were proved which it was competent to prove, to authorize the decision. Voorhees v. Bank of U. S. 10 Peters 449 ; Graham v. Dixon et al. 3 Scam; 115.

Even if the record does not show that the execution of the bond was sufficiently proved, yet this court will presume it was *130proved, because it was competent and proper to prove it viva voce, at the hearing. 1 Atk. 445; Graves v. Budgel, 2 Yes. Sen. 478-9; Banlow v. Rheinlander, 1 Johns. Ch. B. 559.

At law non est factum, must be verified by oath. Courts of equity will follow the rule prescribed for courts of law, as in cases of the statute of limitations, statute of fraud, etc. 1 Story’s Eq. 71, § § 5 a, 56 a, 64, p. 532, § 12 ; 2 Peere Williams 753, at bottom of page ; Practice act, Gale’s Stat, 532, § 12.

(a)

. Cases Citing Text. Decree pro confesso cannot be entered against infant, but case against him must be proved. McClay v. Norris, 4 Gilm. 370, 384.

Statute, authorizing evidence in chan-eery cases to be given orally, does not abrogate rule, that evidence must be preserved in record. White v Morrison, 11 Ill. 361, 364; Wilson v. Kinney, 14 Ill.27, 28

Tiieat, Justice,

delivered the opinion of the court: (1) This was a bill in chancery filed by Bailey against Holdridge, for the specific performance of a contract to convey a tract of land. The bill alleges that Holdridge, in February, 1836, executed and delivered to the complainant a bond, conditioned, that if the complainant should pay the sum of $250, by the 1st of February, 1838, then Holdridge should make him a conveyance of the land. The bond purports to be set out in hcee verba in the bill, but was not filed with it. The bill further charges the full payment of the purchase money, and the refusal of Holdridge to convey.

Holdridge answered, admitting that in February, 1836, he executed a bond to the complainant, but whether the same is truly set out in the bill he does not know, as he cannot'recollect its precise terms; and he denies payment as charged in the bill.

A replication was filed, and the deposition of several witnesses taken, all relating, however, to the question of payment. The bond does not appear to have have been produced or '[* 126] proved, nor is it in any manner mentioned in the record, except the. reference to it in the bill.

At the hearing tho court decreed that the defendant convey the land in question to the complainant.

Holdridge brings an appeal and assigns the rendering of this decree as error.

Two questions arise out of this assignment of error: first, was the bond before the court; and second, was the payment of the purchase money made out by the proof. The bond referred to in the bill, being the foundation of the complainant’s right of action, and its execution being denied by the answer, it was incumbent on the complainant to produce and file it as an exhibit, and prove its genuineness ; or if lost, make the necessary proof, by parol, of its genuineness and contents. It does not appear from the record that this was done. It is insisted, however, that an exhibit may be proved orally on the hearing, and that in this case the court should presume that the bond was produced, and so proved. -If such had been the.fact, the bond would have been endorsed by the clerk as filed, and made part of the record. It is true that exhibits, deeds, and other written instruments, relat*131ing to the cause, may be produced and proved viva voce on the hearing, where the party using them has omitted to establish their genuineness before the officer taking the proofs. Ponfiet v. Windsor, 2 Vesey, Sen. 472; Turner v. Burleigh,, 17 Vesey 355; Banlow v. Rheinlander, 1 Johns. Ch. R. 550 ; Consequa v. Fauning, 2 Johns. Ch. R. 481; 2 Fonblanque’s Eq. 467, and notes. With this exception, the testimony in contested chancery cases, unlike the evidence in cases at law, is in writing, consisting of the depositions of the witnesses and documentary evidence, and the presumption is, that all the testimony is inserted in the record, especially where the written testimony, which may be proven viva voce, is not placed on the files. It is not shown in fact, or by implication, that the bond was ever produced and proved ,* consequently it was not before the court; and without it the complainant was not entitled to a decree.

As the cause was not ready for hearing, in consequence of this omission in the evidence, and as it must be remanded, with leave to either party to take further testimony, it would be improper to express an opinion on the question whether payment of the purchase money was made out.

The decree of the circuit court is reversed, with costs, and the cause remanded, for further proceedings consistent with this opinion.

Decree reversed.

In this cause the appellee moved for a rehearing, for the purpose of enabling him to have the bond incorporated into the record, and certified to this court. The motion was refused.

(1)

Catón, Justice, having been of counsel in this cause, gave no opinion.