Woods, J.
The case presents several points for consideration ; some of them however may easily be disposed of by referring to the earlier decisions of the court.
1. If a writing be lost, its contents may be shown by secondary evidence. It is shown to be lost, when upon diligent search in the place of its usual and proper custody, it can not be found. And the affidavit of the party desiring to avail himself of the instrument, is in law sufficient to prove the loss, if it go to the point of proving the-facts which amount to the complex notion of a loss. This- was the precise point determined in McNiel v. McClintoch, 5 N. H. 855. The demandant is administrator, and has made diligent search among the papers of the intestate and elsewhere, and the recorder of deeds for the county has examined the proper files in his office, and the deed can not he found. This, evidence clearly establishes, prima fade, the loss of the instrument. This subject was fully considered in Woods v. Gassett, 11 N. H. 442; Donalson v. Taylor, 8 Pick. 272; and the ruling was in accordance with those cases.
2. If a deed or other instrument be lost, its contents may be shown by other competent evidence; and the question is, whether an office copy of a deed or other instrument required by law to be recorded, is such evidence. That question also was considered and decided in Southern v. Mendum, 5 N. H. 420, in which case, it appears that it is the best evidence, since such use of the copy was one of the objects for which the registry of deeds was established.
8. The bond of defeasance required that the tenant should pay the Mussey note upon demand made in writing of either of the makers. The note was made by John Pendexter the intestate, Stephen Meserve and Samuel Pendexter. To prove the demand in writing, the testimony of Meserve was introduced, which was to the effect that the administrator of Mussey commenced a suit upon the note, and that the writ was served by a summons upon himself. This is without doubt a demand in writing. The bond settled no form in which the demand should be set forth in the writing, or that the writing should bear the signature of the party making it, or of any one else. There seems to be no reason to question that a sufficient demand to satisfy the exigence of the bond, was made by commencing a suit upon the note by .a writ and summons served upon the proper party.
But a different question arises upon the evidence that was introduced to prove the commencement of the suit. Whether a sufficient written demand was made, depends upon the contents of the writing. This can not regularly be shown but upon inspection of the writing itself, except, of course, when that is lost, and a ease is thus made for the introduction of other proof of the contents.
The ruling therefore which admitted the testimony of Meservc alone, to prove the commencement of an action upon the note, was erroneous.
4. The ruling of the court was right, that notice to the tenant of the payment of the note to Mussey might be inferred from the promise of the tenant to pay the same to the intestate, and from his making provision to do so. The evidence was, that an action was commenced upon the note, and that it was settled by some one, and that subsequently the tenant promised to pay the Mussey debt to the demandant’s intestate^ and that he placed at his disposal certain goods to be sold for the purpose. It is impossible to see any valid objection to the ruling of the court in this particular, and the evidence of notice seems to have been cogent.
5. The next point relates to the effect, as between these parties, of a receipt which the intestate received from the tenant, in pursuance of an arrangement between the two to conceal the property of the latter, and to prevent the former from becoming charged as his trustee at the suit of a creditor.
A receipt is a written admission made by the party signing it, of the fact which it recites, and is evidence against him, at all times, that the fact so admitted is true. In that respect it is like an unwritten or verbal admission of a fact, and derives no greater legal effect from the written form in which it is preserved than attaches to writing in general, as a safer and more enduring memorial than the mere recollection of a witness of what was said or done. It is not of the nature of a written contract, whose tenor and purport can not be affected by the evidence of what was said or done contrary to its terms.
The consequence is, that like a mere verbal admission, it may be contradicted by evidence to show that it was founded in misapprehension or surprise; that it was made for a particular purpose, and that its use was by the understanding -of the parties to be limited to special occasions. If it forms a part of a contract, and is embodied in the writing which contains its terms, it may still be contradicted, and the stipulations founded upon the consideration admitted to have been received, may fail in such cases for want of consideration. These positions are fully sustained by the authorities, and are of familiar application. 1 Greenl. Ev., sec. 305; Harden v. Gordon, 2 Mason 561.
The position taken at the trial was, that this receipt having been given by the defendant to the intestate, for the fraudulent purpose of avoiding the just claims of creditors upon his property in the intestate’s hands, and having served that fraudulent purpose, shall not now be avoided by evidence to be produced by the party who instituted the fraud, to show that it was a transaction of that character, and was not intended to bind the parties to it. In other words, that a party shall not avoid the legal consequences of his acts, by showing them to have been done for a merely fraudulent purpose, and not with an intent that they should have the legal effect that might otherwise be attributed to them. Such would undoubtedly be the effect of a conveyance, and the maxim of potior conditio possidentis would apply. Rob. Fraud. Conv., chap. 7, sec. 1.
But a receipt bears no analogy to a conveyance. It conveys nothing. It is not even an agreement, as has been shown. If it were such, it would be the demandant in the present ease, who seeks to avail himself of it, and whose claim to its benefits would be met by the usual ob jection to the enforcement of an immoral and illegal contract. He exhibits the receipt, and insists upon its legal effect to estop the tenant from proving the truth. If it had its inception in fraud, it is without efficacy in a court of justice. Roby v. West, 4 N. H. 285.
But the true ground appears to be, that the defendant, having made an admission, may yet be suffered to show that the fact admitted is not true, notwithstanding the admission was made for a purpose not justified by law, and contrary to good faith; since the demandant has not based any honest action .upon it, and has in no way been deceived. To this point, substantially, is the case of Wearse v. Peirce, 24 Pick. 141.
We conclude therefore that the ruling of the court was upon this point erroneous.
6. The figures in the hand-writing of Pendexter, the intestate, upon the bill of Mellen, were correctly held to be evidence in the case. The acts of the intestate might in general have been shown in evidence in the case, and although the significancy of any one of them taken alone might not have been obvious, or very important, the tenant has a right to lay them before the jury, if they appear to have any bearing at all upon the issue. There was evidence here that a quantity of merchandize was placed by the tenant at the disposal of Pendexter, the intestate. Upon one of the bills and in a column beneath its sum, in figures, were traced by Pendexter certain other sums; and the amount of the whole computed and set down by him. This might we think afford the jury some ground to infer that the sums added to Mellen’s bill for some purpose or other, might have passed with this into Pendexter’s hands.
The verdict must be set aside upon the ground of the errors indicated, which were first, the admission of verbal testimony without any papers to show the written demand of the money due upon the note to Mussey; and secondly, the misdirection as to the effect of the receipt given by the defendant to Pendexter, and the consequent exclusion of the evidence offered by the defendant to contradict it.
There were other exceptions reported, but they appear to be immaterial in consequence of the views which have been presented.
New trial granted.