This is evidence offered to the court to es*335tablish the loss of the instrument preparatory to the introduction of evidence of its contents. It is well established that, for this purpose, the judge may admit the evidence of an interested witness, or of the party to the suit. Here it is said the wife had the custody of it. She is, therefore, the best witness the nature of the case admits. The rule of social policy, which shuts out the testimony of the wrife in ordinary cases, does not apply.
The wife then proved the loss of the due-bill, and thereupon the defendant’s counsel offered the defendant as a witness to prove that he had never made such due-bill, on the authority of 2d Rev. Stat. 406.
Jones, O. J. The statute allows him to disprove the loss, and nothing more. The plaintiff could not be received to prove its existence; he had to establish that fact by testimony aliundi, and from parity of reasoning the defendant is not admissible to prove its non-existence.(1)
Verdict for plaintiff.
*336The defendant applied to the court for a new trial, upon the above grounds, but it was denied.
Anthon, for plaintiff.
Staples, for defendant.
“Whenever a party to an action shall have been permitted to prove, by his own oath, the loss of any instrument in order to admit other proof of the contents thereof) the adverse party may also be examined by the court, on oath, to disprove such loss, and tm account for such instrument." 2 R. S. 406, sec. 74.
The rule that the party himself, out of whose possession the instrument has been lost, may ex necessitate prove that fact, is a well established ancient rule, and as this evidence is addressed only to the presiding judge to enable him to say whether secondary evidence shall be admitted for the consideration of the jury, perhaps it would have been always deemed a safe exercise of discretion to hear what the opposite party might, on his oath, allege in opposition to the fact of loss'. There seems, however, no case in the books wherein such testimony has been offered or admitted. The revisors, in introducing the above section, remark: The practice, as now firmly established, *336allows a party to the action, to prove the loss of an instrument by his own oath. In cases of notes and other evidences of debt, the only receipt which the debtor often thinks it necessary to take, is the destruction of the instrument. In such cases, and in many others, the oath of the opposite party may explain the apparent loss. At all events, it seems but just to afford the same opportunity to both parties equally to be examined on oath.