The statement of the case exhibits, at the outset, an error in the conclusion of the Court below, from the testimony of the plaintiff and Sinton. There is nothing in their testimony which gives support to the inference that the destruction of the notes was assented to for the piurpose of preventing their being used -as evidence, but, on the contrary, their testimony plainly imports that the destruction was assented to for the purpose of preventing the negotiation of the notes to third parties, and thus to •quiet the apprehensions of the maker that, if they were in the market, they might get into the hands of parties who would ¡attempt, while he was in embarrassed circumstances, to enforce their payment.
Looking, then, to the ruling of the Court, and not to the reason assigned for it, we will proceed to consider the several questions raised by the appeal; and these relate to the admissibility of the affidavits presented; to the sufficiency of the proofs offered as a foundation for the secondary evidence; and to the ■effect of the destruction of the notes upon the debt arising upon them.
The rule which excludes the testimony of parties, has reference to the matters in issue, and not to incidental questions, involving matters auxiliary to the trial of the cause, which are addressed solely to the Court. Upon these incidental questions, the oath of parties is received, and its admissibility, though generally placed on the ground of necessity to prevent a failure of justice, does not always, or even in the greater number of instances, depend upon that circumstance. Thus, the oath of par*147ties to obtain a continuance, or to take depositions, or to prove the death or absence of a subscribing witness, and in many other instances, is received without reference to the question whether the facts sworn to could be established by the testimony of disinterested witnesses. (1 Greenleaf, 349.) Jts admissibility to lay the foundation for secondary evidence of the contents of a written instrument, when the original is kept in a public office, and is not permitted to be taken from it, is not founded upon necessity, for in such cases the custodian of the original could be examined, by deposition, as to the fact that it was not allowed to be removed. (Hensley v. Tarpey, 7 Cal., 288.) And its admissibility, to show the destruction of written instruments, can not always be referred to the necessity of the case. It is impossible for any foresight to provide for every development of proof on the trial of a contested cause, and secondary evidence of destroyed instruments may sometimes unexpectedly become necessary. In such contingency, the trial is not delayed, or the evidence excluded, because, possibly, a disinterested witness may be in existence, who can testify to the destruction of the instruments—■ the testimony of the parties is received, and the trial proceeds. Whatever may have been the reason originally assigned, the true ground uj>on which the testimony of parties is admitted, to prove the destruction of written instruments, is this: that the testimony relates to matters preliminary and incidental, is addressed solely to the Court, and does not affect the issue to be tried by the jury. Upon such matters, the rule as to the incompetency of parties and interested persons does not apply. The testimony proves nothing in the cause ; it only prepares the way for the introduction of proof. The existence and contents of the instruments must be established by distinct and competent evidence.
That the preliminary testimony of the parties may be presented by affidavit, is too well settled to admit of question. (Cowen & Hill’s Notes, Part II, 408, and cases there cited; Tayloe v. Riggs, 9 Wheat., 483; Wells v. Martin, 1 Ohio State Rep., 389.) Indeed, in several States, it is held the better practice to require the testimony to be given in this manner. Thus, in Smith v. Wilson, (1 Dev. & Bat., 41,) the Supreme Court of Morth Carolina, after stating that the affidavit of parties to the loss or destruction of original instruments has invariably been received, observes that the testimony is addressed to the Court, and, as a matter of practice, “ ought to be in writing, that the Court only may hear it.” (See Domand v. State Bank of Illinois, 2 Scam., 236.)
In this State, the testimony may be given orally or offered by affidavit. The convenience of the parties and of the Court will sometimes suggest one course, and sometimes another. Either course may be adopted, and either course will avail. (McCann *148v. Beach, 2 Cal., 31; Grass Valley Quartz Mining Co. v. Stack-house, 6 Cal., 414; Gordon v. Searing, 8 Cal., 49.)
We are referred to the case of Poignard v. Smith, (8 Pick., 277,) as authority against the admission of the affidavit of Sin-ton, for the reason that he was a competent witness in the cause. The decision in that case, and the objection in this, both proceed upon the position that the preliminary evidence of the party is admitted only from necessity. As we place the admissibility of such evidence on other grounds, we can see no reason why the competency of Sinton as a witness should render his affidavit improper for the consideration of the Court, in connection with the affidavit of the plaintiff.
It follows, from the views we have taken, that the affidavits of the plaintiff and Sjmton were admissible for the purposes for which they were offered. At the same time, we are of opinion that it was within the discretion of the Court, after hearing the affidavits, to require the oral examination of the parties, as they were present at the trial, in relation to the facts and circumstances detailed by them.
The preliminary testimony was sufficient, beyond question, to authorize the admission of the secondary evidence. It established the fact of destruction, and that it was assented to upon the impression and understanding that the liability of the maker upon the notes would not be affected thereby. The retention of the bond or contract, which describes the notes, repels all suspicion of any design to suppress, by their destruction, evidence of their contents, and thus to produce injury to the maker, or to perpetrate a fraud upon him. .
In our former opinion in this case, (Bagley v. McMickle, 9 Cal., 447,) we held that where written instruments are voluntarily and deliberately destroyed, the cause or motive of the destruction is the controlling fact, which must determine the admissibility of secondary evidence of their contents, and that if the destruction was made upon an erroneous impression of its effect, under circumstances free from suspicion of intended fraud, such evidence is admissible. The opinion then expressed is in accordance with all the authorities, and is decisive of the question on the present appeal. (Riggs v. Tayloe, 9 Wheat., 483; U. S. Bank v. Sill, 5 Conn., 106; Renner v. Bank of Columbia, 9 Wheat., 581; Proprietor of Baintree v. Battles, 6 Vt., 399; 4 Cowen & Hill’s Notes to Phillipps, No. 247.)
The destruction of the notes in no respect impaired the liability of the maker, or the right of the plaintiff to recover upon them. The right of action upon a contract in writing is not barred by the Statute of Limitations until the lapse of four years after it has accrued. (Statute, § 17.) The fact that the contract was in writing, and not the present existence of the writing, determines the period within which the action must be brought. *149The highest evidence of that fact is, of course, the writing itself; but, in case of its loss or destruction, the fact maybe- established by parol. The destruction of the notes, then, only impaired the evidence of the liability of the maker. “A bill or note,” says the Supreme Court of Connecticut, “is not a debt; it is only primary evidence of a debt; and when this is lost or destroyed, bona fide, it may be supplied by secondary evidence." (U. S. Bank v. Sill, 5 Conn., 106; Martin v. Bank U. S., 4 Wash. Cir. Ct. Rep., 253.)
It follows, from the views we have taken, that the judgment below must be reversed; and we are requested to direct the entry of a judgment in favor of the plaintiff. It is urged, in support of the request, that this is the fourth appeal upon substantially the same facts, upon which this Court has each time adjudged that the plaintiff was entitled to recover. It has been a matter of surprise to us that a case so simple in its character, involving no questions of difficulty, should so often be the subject of appeal ; but it is impossible for us to say that the defendants might not have made some defence on the trial had the ruling of the Court below been different. It is not our jmactice to direct the entry of a judgment in the Court below, in actions at law, except whore the facts have been found by the Judge who tried the cause, or by the special verdict of a jury, or where, from the character of the action or pleadings, one of the parties is entitled to judgment without proof.
Judgment reversed, and cause remanded.