1. Evidence : where adverse party is executor. The demurrer was properly sustained. First, appellant claims that plaintiff is not a competent witness °f the loss of the notice, and hence she was unable to lay the proper foundation for the introduction of the record thereof. In this he is in error. At common law the party’s own oath may be received as to the facts and circumstances of the loss of a paper, in order to the introduction of secondary evidence of its contents. 1 G-reenl. on Ev., § 319. This rule is not changed by the provisions of chapter 159 of the Kevision. Section 3980 renders competent parties who were incompetent at common law, and section 3982 provides that section 3980 shall not apply when the adverse party is the executor of a deceased person, and the facts to be proved transpired before the death of the deceased. No one competent at common law is rendered incompetent by these provisions.
2.-husband and wife. Second. It is claimed that it would have been a vain thing to have filed her claim without the means of proving her ownership, and the amount of the property left under her husband’s control. From the statements of the abstract it appears that notice of administration was given March 1, 1867, and that notice of plaintiff’s claim was filed December 5, 1861, more than five years before. Hence, under the provisions of section 2501 of the Kevision, it became presumptive evidence of the facts therein stated.
A prima facie case for plaintiff would have been made out by the mere production of the record of notice filed, under the provisions of section 2501 of the Revision.
There was, therefore, no necessity for delay, and no excuse for it is shown.
Affirmed.