
    Thomas K. Jones & al. versus Stephen Fales.
    Of paroi evidence to prove the contents of papers lost from the files of the Coun. [Such evidence is admissible to prove the execution and contents of promissory notes offered in evidence on the trial of the cause, and afterwards filed with the papers in the cause in Court, and lost from the files in the clerk’s office.]
    This action [Vide ante, Vol. 4, 245.] was again tried before the Chief Justice, at the last November term, in this county.
    At the trial, the plaintiffs admitted that they could not produce the original notes; but to maintain the issue on their part, they offered in evidence the testimony of Charles Jackson, Esq., to prove that he drew the original writ in this cause (which was produced), either from the original notes therein declared on, or from papers purporting to be copies of them; that, at the former trial of this cause, he was counsel for the plaintiffs, and produced four original notes, which were read and delivered to the jury who tried the cause; that there was no variance between the notes thus produced and the declaration, as he verily believed, except as to one of the notes, at the bottom of which the words “ foreign mon[*102] ey ” were written; that at the time no objection * was made by the defendant to the signatures, either of the maker or endorser of any of them; that he knew not where the said original notes were; that he believed that they or some of them were produced in Court at the last March term, on the motion for a new trial; and that since that time he had never seen or heard of them, or of any of the papers in this cause.
    The plaintiffs further offered in evidence the testimony of N. P. Russell, a juror on the former trial, to prove that four original notes were read and delivered to the jury, who formerly tried this cause; that he believed they corresponded with the declaration, and remembered no objection on that point; that the jury considered them as the original notes declared on, calculated interest on them, and gave their verdict accordingly; that he well knew the hand-writing of the defendant, and of Clap, who signed two of the notes, and endorsed the two others, and was satisfied that the said signatures were the hand-writing of the defendant, and of the said Clap respectively.
    The plaintiffs also offered in evidence the testimony of John Tucker, Esq., the clerk of this Court, to prove that he had searched for the said original notes and the papers in this case, in his office and elsewhere; that he had not been able to find any of them ; and that he did not know where they were.
    The plaintiffs likewise produced a memorandum in writing, signed by the said Clap, written on a paper containing the alleged copies of the said original notes, which were delivered to the jury on the former trial, and which corresponded with the present declaration as amended; in which memorandum the said Clap declared that he believed the said paper to contain true copies of the said four notes, that he did sign and endorse such notes respectively corresponding with the notes now declared on, and that he has no doubt that the same original notes are lost.
    [ * 103 ] * The judge ordered the said memorandum to be filed, and permitted the said testimony to be given to the jury, and directed them that, under the circumstances aforesaid, it was evidence proper for their consideration, to prove the making and endorsing the notes now declared on.
    The jury found a verdict for the plaintiffs, and the defendant excepted against the admission of the said testimony, and the direction of the judge as against law, and thereupon moved that the verdict be set aside, and a new trial granted.
    This motion came before the Court at this term, and was briefly
    
      supported by Morton and Dexter, and opposed by Jackson; after which the opinion of the Court was delivered by
   Parsons, C. J.

The admission of paroi evidence by the judge to prove the contents of certain promissory notes said to be lost is objected to on exceptions filed by the defendant; and for this cause a new trial is moved for.

After hearing the parties, we are all satisfied that the evidence was properly admitted. By law the plaintiffs, after they had been delivered to the jury in evidence, had no longer the custody of the notes; but they were intrusted to the care of the clerk of this court; and it appeared from his testimony that they were lost, and that he could not find them. This was a proper case to let in evidence of the contents; and that the evidence to prove the con tents was proper is not denied.

The defendant’s counsel have argued against the admission of the copies, because they were not proved to be taken before the loss of the original; and his argument is founded on principle, if the copies were produced to prove the contents of the originals. But he seems to be mistaken in the point. The copies were produced to have the confession of Clap the endorser written on them, that he believed them to be true copies, and that the originals were lost, for the use of the defendant if *he should [*104] have ocfeasion to resort to the endorser for a remedy; and not to prove the contents of the notes in this action.

Since the last trial the clerk has found the originals, and on examination it appears that the contents were truly testified to by the witnesses.

If the judge had in fact erred, there can now be no ground for a new trial, as complete justice has been done . We are, however, satisfied that the evidence objected to was properly admitted, under the circumstances of the case, as they then appeared.

Judgment according to verdict. 
      
      
        Newell vs. Hopkins, 6 Mass. 330. — Brazier & al. vs. Clapp, ante, 1.
     