Gilchrist, J.
There are many cases in which the existence, execution, and contents, of a deed may be proved without producing the instrument itself. But in all these cases foundation must be laid for the introduction of the testimony necessary for establishing those facts, by other evidence showing that the production of the instrument is practically impossible.
As in Leyfield’s case, 10 Co. 92, in which Lord Coke says that “ in great and notorious extremities, as by casualty of fire that all his evidences were burnt in his house, there, if that should appear to the judge, they may in favor of him who has so great a loss by fire, suffer him upon the general issue to prove the deed in evidence to the jury by witnesses, that affliction be not added to affliction; and if the jury find it, though it be not showed forth in evidence, it shall be good enough.” In Read v. Brookman, 3 T. R. 151, Ashurst, J., says, that “ if the deed be destroyed by any other accident, it falls within the same reason, and that brings it to a matter of fact before the jury whether there be or be not sufficient evidence that the deed did exist.”
These cases were cited in New-Boston v. Dunbarton, 15 N. H. 205, in which it was held that in accordance with the general principle admitting the use of secondary evidence in such cases, the existence of a charter might be inferred from the fact that the town has long exercised municipal functions and privileges.
In Downing v. Pickering, 15 N. H. 344, a like presumption was permitted to prevail in favor of the existence and execution of a deed, from long possession, from partition, and from other acts and intentions of parties, which were proved.
In Colby v. Kenniston, 4 N. H. 262, the principle wag-considered as perfectly established, and evidence of the execution and contents of the deed was held to have been properly admitted, upon proof that no such deed was- found upon examination to have been recorded, and that the grantee had absconded and that his residence was unknown.
These cases suffice as examples of the application of a rule that is not often drawn in question, and is founded upon the unavoidable casualties which, but for the existence of the rule, would draw after them the accumulated affliction adverted to by Lord Coke.
That sufficient foundation for the introduction of this secondary evidence was laid in the case, is we think sufficiently apparent. In these eases, according to Professor Greenleaf, Greenl. Ev., sec. 558, “ if the instrument is lost, the party is required to give some evidence that such a paper once existed, though slight evidence is sufficient for the purpose, and that a bond fide and diligent search has been unsuccessfully made for it, in the place where it was most likely to be found, if the nature of the case admits such proof; after which his own affidavit is admissible to the fact of its loss.” To the same point see Greenl. Ev., see. 349, McNiel v. McClintock, 5 N. H. 355.
Here the existence and contents of the deed were proved by the witness who wrote and took the acknowledgment of it, and who also signed it as a subscribing witness. The party whose affidavit was admitted to prove the loss of the paper from his own custody, was in effect a party to the suit and a party in interest, although his name did not appear upon the record. He was the mortgager for whose benefit the action was in fact maintained by the mortgagee. He falls clearly within the reason of the rule which from the necessity of the case admits the affidavit of an interested witness to prove the loss of an instrument from his own custody.
Judgment on the verdict.