
    Daniel Donelson versus Ebenezer Taylor.
    fhe affidavit of a party to a suit may be received to prove the loss of a writing, id order to let in secondary evidence of its contents.
    Whether the loss of a paper is sufficiently proved to let in secondary evidence of its contents, is a question for the court.
    If the testimony of a witness is inadmissible to prove such loss, by reason of his being interested in the suit, and his being interested is known to the party against whom lie is called to testily, he must be objected to before he is sworn and examined, or the objection will be too late.
    Assumpsit upon a promissory note made by the defendant, payable to the plaintiff or order.
    At the trial, before Parker C. J., it appeared, that the note was used at the trial in the Common Pleas, but the case was taken from the jury and brought up by demurrer. It having been suggested by the plaintiff’s counsel, that the note had not been seen by any one since the trial in the Common Pleas, the judge admitted the affidavit of the plaintiff to show that it was not in his possession, and that he did not know where it was, and then allowed him to give such evidence as he could of the loss.
    
      It appeared from the evidence of the clerk of the court and °f counsel in the case, that the note was read to the jury at the trial in the Common Pleas, that it agreed with the description of it in the writ, that it was not then suggested that there was any variance between the note and the declaration, and that the defence made was founded on the existence of the note. It also appeared from the testimony of the plaintiff’s counsel, that they had not seen the note since the trial in the Common Pleas.
    Isaac B. Barber, the attorney who filled the writ, testified, that he drew the writ from the original note then in his possession, that he brought it with him to court, where it was used on the trial in the Common Pleas, that he had searched among his papers and could not find it, and that he had not seen it since the trial. After he had given this evidence, it was objected that he was not a competent witness, having indorsed the writ. The judge, however, considered the evidence as proper for the Court to act on, in determining whether the plaintiff should be allowed to go to the jury without the production of the note.
    No defence being made to the note, the judge informed the counsel, that he should instruct the jury that on this evidence they ought to return a verdict for the plaintiff, and that judg ment would be rendered thereon for the plaintiff on his giving a sufficient bond of indemnity to save the defendant harmless from any future claim on the note. Whereupon the defendant consented to be defaulted, reserving for the whole Court the-question, whether the evidence was sufficient and conclusive, without any thing to contradict it, to prove the loss of the note, and to entitle the plaintiff to recover without producing it. And judgment was to be rendered for the plaintiff on bis filing the bond, if this proceeding is right; otherwise the default was to be taken off and a new trial granted.
    
      Sept 22d.
    
      Wells, for the defendant,
    contended that the evidence of he plaintiff and of the indorser of the writ were not admissibl. to prove the loss of the note. Coleman v. Wolcott, 4 Day, 388. If Barber was admissible to prove the loss, he was not to prove the contents of the note. Jackson v. Frier, 1.6 Johns. R. 193. The evidence of the loss of the note was not sufficient ; it does not appear that any search has been made for it, on the files of the Court of Common Pleas. 1 Stark. Ev. 349, 350; Jones v. Fales, 5 Mass. R. 101; Jackson v. Hasbrouck 12 Johns. R. 192. [Parker C. J. The whole inquiry was grounded on the supposition that it was not to be found on the files.]
    The evidence of the loss was not conclusive, but should have been left to the" consideration of the jury.
    Jlshmun, for the plaintiff,
    cited Taunton Bank v. Richardson et al. 5 Pick. 436; Davis v. Spooner, 3 Pick. 284; [2a edit. 286, note 1; Poignand v. Smith, ante, 272.]
    
      Sept. 25th
    
   Per Curiam.

There appears to have been sufficient evidence that the note was lost, to let the plaintiff in to prove the contents. The affidavit of Donelson was properly received, in order to satisfy the Court that the note was not in his possession nor anywhere within his control. The evidence of the loss was rightly directed to the Court. And as to the clerk’s not saying he had searched his files, it ought to be taken as a fact that a search was made. His testimony would have been a fraud on the Court, if he had not looked among his files for the note.

The testimony of Barber would have been rejected, if it had been offered to the jury, because his indorsement of the writ made him interested. But if his affidavit might not, like that of the plaintiff, have been received on a preliminary question to the Court, still the objection came too late, being after he was sworn and examined. This was a waiver of the objection, the evidence of his interest beiftg within reach of the defendant’s csunsel when he was offered as a witness.

Judgment for the plaintiff.  