It is made a question in this case, whether, when the loss of a paper is to be proved to the court, in order to lay a foundation for the introduction of sec* ondary evidence as to its contents, the testimony of the party himself is admissible to prove the loss.
The excuse alleged by a party for the omission of a proferí, may be traversed ; and when that is the case, and the excuse alleged is the loss of the deed, no doubt is entertained that the loss must be proved to the jury, in the same manner that any other fact is to be proved.
But in such a case, proof of a bona fide and diligent search in all the places where the instrument is likely to be found, without success, is sufficient. 1 Starkie’s Ev. 349.
But when the loss of an instrument is to bo shown to the court in order to lay a foundation for introducing secondary evidence of its contents, it has always been the practice in this state to receive the testimony of the party as to the loss. In many cases, such testimony is much more satisfactory than any evidence of search that can be adduced. And this practice has the direct sanction of the supreme court of the United States, and of some of the most respectable state courts in the Union, and prevails, we have no doubt, in most of the states. 1 Peter’s S. C. Rep. 591, Taylor v. Riggs; 16 Johns. 193, Jackson v. Frier ; 8 Pick. 278 ; 3 ditto, 287 ; 1 Starkie’s Ev. 350, note ; 7 Pick. 62, Adams v. Leland.
Judgment on the verdict.