Their opinion was delivered by
Skinner, Ch. J.The first question presented in this case was fully considered in the case of Penjield vs. Cook, and the principle was there settled, that the party in a suit cannot testify to the loss of an instrument, or paper, upon which the action is founded. That was the case of a bond, or specialty, but the principle which governed the decision in that case, must apply with equal force to the present. Indeed, this being the case of a negotiable note, made payable to the plaintiff, or bearer, according to the law, as it is now understood, and settled in England ; 'nothing short of proof of the destruction of the note, would at law avail the party. — 3 Com. Law R. 55 — 6--7—ib. 443 — 4.
On the question as to the admission of the testimony of Loomis, to show the existence and contents of the notes, there could be no doubt such testimony might have been proper; and under different circumstances, could not have been rejected. If this testimony had been offered in connexion with other legal testimony, tending to prove the destruction of the notes, the Court no doubt ought, and probably would, have admitted it; but when the Court were advised of the object of offering it, and that it was only to be aided by the testimony of the party himself, which could not be received, it would not only have been useless, and occupied the time of the Court to no purpose, but would have been irrelevant; in as much as standing alone, it would prove nothing material in the case.
Judgment of county court affirmed.