Two questions arise in this case ; and although the motion does not present them in the most favourable form, yet we are willing to decide the principles involved, as being of some considerable practical importance.
The first question is, can the plaintiif be received to testify to the court, that an instrument declared upon, or which it becomes necessary to use in the progress of the trial, is destroyed or lost, so as to render secondary evidence admissn ble. In Coleman v. Wolcott, 4 Day, 388., this court held, that the allegation in the declaration, of the loss of an instrument, was a material fact in the issue to the jury ; and hence they rejected the plaintiff as a witness. But in the later case of Witter v. Latham, 12 Conn. R. 392. they held the loss of a paper to be a preliminary question to the court, not to be reviewed by the jury. In this latter case, the court say, they do not approve of Coleman v. Wolcott, on this point. It is true, the cases are not perfectly alike ; in the first, the declaration alleges the loss; in the last, the question of loss arose in the progress of the evidence. But we see no substantial difference. If the question of loss is only preliminary to the introduction of the next best evidence, the great point is sel-*290tied, and the matter now in hand is readily disposed of, if the . . J 1 is tobe carried out.
What have the jury to do with the question, when or under what circumstances, secondary evidence may be received? They ought to have the best practicable evidence in their inquiry ; and the court will see that they have it. But the court alone must decide, in each case, what is that best practicable evidence, and how stringently they will apply the general rule. It must be remembered, that the preliminary inquiry is addressed to the court, not to the jury. The court must be satisfied that a foundation is laid for the introduction of inferior evidence. With such a question the jury have nothing to do. They know nothing about it. They are supposed to hear nothing about it; and in fact, have no ability to judge about it.
Now, there is no rule of law, that upon preliminary questions the best evidence is indispensable, or evidence from disinterested witnesses; but the rule is otherwise. The affidavit of the party may always be received to show cause for a continuance ; so the absence or death of an attesting witness; and so on all preliminary questions. These do not go to the merits; and therefore, do not belong to the jury.
We do not recognize the distinction claimed, by the defendant’s counsel, between cases where the action is on the instrument, and where the question arises indirectly, as in Witter v. Latham. No such distinction appears in the books; nor does analogy afford any argument for it. The question, in every case, is to the court. But when we come to the execution or the contents of a paper, as bearing upon the issue to the jury, then we enter the province of the jury, and they must found their verdict upon such evidence as the court have permitted to be laid before them.
Nor do we assent to the claim, that before the party can testify, he must show, by disinterested witnesses, that the paper once existed, or that search has been made for it. The order of proof is not important. At whatever stage of the cause, or of this particular inquiry, the question arises, the court must satisfy itself, from the oath of the party, or search made, or other evidence, that a case is made out for the introduction of inferior proof; and after this, the jury are to be satisfied, that the instrument once existed, and what were its contents. It would be embarrassing to the trial, if after *291the cause is in progress to the jury, the party cannot be admitted to testify to the loss of a paper, until he first proves former existence.
liut further,the authorities are clearly with the plaintiff; and so are the elementary writers, with perhaps a single exception as to the order of proof. Douglass’ lessee v. Sanderson, 2 Dal. 116. Taylor v. Riggs & al. 1 Pet. R. 591. Patterson v. Warren & al. 5 Pet. R. 233. 240. 7 Pick. 74. Paignard v. Smith, 8 Pick. 273. Pagev. Page, 15 Pick. 368. Jackson v. Frier, 16 Johns. R. 193. Chamberlin v. Gorham, 20 Johns. R. 144. Blade v. Noland, 12 Wend. 175. 5 N. Hamp. 357. 11 N. Hamp. 442. Blanton v. Miller, 1 Hayw. 4. Seekright v. Bogan, 1 Hayw. 178. note. 1 Sound. 9. Cro. Jac. 429. Cook v. Remington, 6 Mod. 237. 264. 2 Stra. 1186. 13 Vin. Abr. 72. 1 Bac. Abr. 435. 1 Greenl. Ev. § 558. 349.
The second question is, if the defendant gave his note, at the time of the sale or afterwards, can the plaintiff sue on the common counts, unless the note is produced and cancelled.
That this may be done, and often is done, in our courts, is familiar to every lawyer and judge. One simple contract is not a merger of another like contract, although it may extend the time of credit. There is nothing in this case peculiar, to take it out of the general rule. And had the plaintiff, instead of offering to prove, under the common counts, the consideration of the note, said nothing about the note, but gone on t o prove the sale and delivery of the property for which the note was given, and left it for the defendant to set up that there was a note, this question would hardly have been started.
An outstanding note, not negotiable, clearly would be no de-fence, unless the defendant should satisfy the jury that the credit had not expired. If it was negotiable, — a fact to the jury, andnot to the court, — it must,if in existence,be produced and cancelled.
We attach no importance to the offer, by the plaintiff, to release the defendant from the payment of the note ; for if it is not negotiable, a release is unnecessary ; and if it is negotiable, it may have been negotiated before due ; in which case, á release by the payee, is of no value to the defendant.
We do not advise a new trial.
In this opinion the other Judges concurred.New trial not to be granted.