¶1It is an elementary rule that evidence of the execution ar contents of a deed, cannot be admitted, without the pro*195duction of the deed itself, unless it can be shown that it is in the possession of the opposite party, and he refuses to produce it, after regular notice, or that it is lost or destroyed.
¶2The evidence of the loss of a deed is addressed to the Court alone ; and it is not a subject on which the jury are to pass. In the case of Butler v. Warren, (11 Johns. Rep. 57.) it is true, this Court considered the admission of an interested witness to prove the service of a notice on the defendant to produce a paper in his possession on the trial, preparatory to giving evidence of the contents of the paper, as an infraction of the rule of law, which precludes the admission of an interested witness to give evidence on the trial. But the well-settled distinction between evidence offered to the Court upon a collateral point, not for the consideration of the jury, and evidence in chief, was not adverted to in that case. And we are clearly of the opinion, that the decision in Butler v. Warren, cannot be supported. In Forbes v. Wale, (1 Bl. Rep. 532.) the issue was non estfactum, in a suit on a bond. It became necessary to prove that the subscribing witnesses were dead, and the plaintiff himself was examined, as a witness to that point, and as ^preparatory to the proof of the handwriting. In Godbolt, 193., the Court refused to pehnit depositions of witnesses taken in the Court of Chancery, to be given in evidence, unless affidavit be made that the witnesses were dead. In Godbolt, 326., the Court said, that if the party cannot find a witness, he is, as it were, dead unto him, and his deposition in an English Court, (Chancery,) in a cause between the same parties may be allowed to be read to the jury, so as the party make oath that he did his endeavour to find the witness, but that he could not. In Douglass’ lessee v. Saunderson, (2 Dall. 116.) the Supreme Court of Pennsylvania held, that the plaintiff was a good witness to prove the death of the subscribing witness, in order to let in evidence of the hand writing. I have considered the nature of this preliminary evidence, for the purpose of showing that it is not addressed to the jury, but is merely for the consideration of the Court. It follows, that the Chief Justice was mistaken in admitting the evi*196dence of the loss of the deed, with a view of its being passed upon by the jury.
¶3If the evidence of the loss'of the deed was sufficient, it would not be a ground for a new trial that it was submitted to the jury j for, although that would be irregular, the party could not complain of any injustice to him, in consequence of that course of proceeding. That a particular deed existed is the most material inquiry ; the fact of its existence, and the contents of the deed, are matters to be tried by the jury. The loss of it must be made out, as a prerequisite, to the satisfaction of the Court. The law exacts nothing unreasonable in such a case. If the parol proof of the lose establishes the fact with reasonable certainty, that is sufficient, (8 East, 289. Jackson v. Neely, 10 Johns. Rep. 374.) No precise rule can be safely laid down upon this subject, further than this, that diligent search and inquiry should be made of those persons in whose custody the law presumes the deed to be, supposing it once to have existed. In this view, there is a material defect in the proofs, for no inquiry appears to have been made of the widow, or of any of the family of Allen. The presumption is, that they know where he died, and what became of his papers. At all events, they are more likely to have this knowledge than any other persons; and it was indispensable to procure some evidence from some part of his family. The proof in the case is entirely inconclusive on the fact of the loss of the deed, if it ever existed ; and proof of the execution, or contents of the deed, ought not to have been admitted upon such slight evidence.
¶4As to the evidence of the execution, and contents of the deed, it is unnecessary to say much, as it is presented in the case. It is of a suspicious character, though it seems it obtained credence from the jury.
¶5There must be a new trial; the costs to abide the event of the suit.
¶6New trial granted.