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*203The opinion of the Court was drawn up by

Emery J.

If the exceptions in this case can be sustained, the morion for the new trial will become unimportant.

The bond from John Hopkins to ./. II. Jordan, dated July 15, 1835, to convey to him certain lots of land, in Ellsworth, containing 83acres, for $2512,50 assigned by Jordan on the 20th of July, 1835, to A. C. Smith and A. G. Currier. On the 31st of July, 1835, they transfer it to Benjamin Richards, the defendant. Before that time, to wit, the 21st of July, 1835, the next day after Smith and Currier took the assignment from Jordan of Uopkin’s bond, it would seem that the defendant had taken a bond of the plaintiff of the land in Ellsworth, at $4 per acre, running twenty days, leaving the plaintiffs the privilege to sell at that price, or an advance of it, before the expiration of the bond, in which case the defendant agreed to take the land at the price offered or give up the bond.

The paper sued, is dated the 31st of July. Preparatory to the admission of the deposition of Augustus C. Stiles, it became important to show the loss of a paper or bond once given by the plaintiffs to the defendant, by whom it was returned. In strictness the affidavit of the other plaintiff should also have been introduced to show the search for and loss of the bond. It was satisfactory to the Judge, to whose discretion the preliminary proof is intrusted. Previous notice to the defendant was not necessary, the paper having been returned to the plaintiffs.

We cannot discover any legal objection to the admission of Jordan’s testimony. The reason of the draft being made in his favor was fairly a subject of parol evidence.

The proof proposed by the defendant’s counsel to bo offered of the defendant’s declaration of the purpose of accepting the draft, in the absence of the plaintiffs, was rightly rejected. The defendant produces the draft and his acceptance, but in that acceptance is no statement making any qualification of its generality, nor any condition that it was or should be accepted in fulfilment of the contract now in suit. It really became then a question for the jury to settle, whether the draft was by both parties intended as a payment of the plaintiff’s present claim. The instruction of the Court was calculated to draw the minds of the jury to the just and proper dis*204crimination. And they have by their verdict determined, that the draft was made, and payment was understood by the defendant as being made to discharge a different contract from the one declared on. And certainly we cannot think the remark that they might call to mind the language, “ a lot of land bonded to me by them,” in the contract in suit was calculated to mislead. It would not be going too far to say, that it partook of so much latent ambiguity, that the testimony might properly be weighed by them, as helping them to a proper conclusion. And it must be recollected that the defendant introduced the Hopkins bond.

The exceptions must be overruled. On the motion for the new trial, we do not perceive that the language of the Court was calculated to make an erroneous impression on the mincis of the jury. The conviction ought to be strong on the minds of the Court, that the jury have fallen into some error in regard to the nature and force of the evidence, before the Court will interfere. to grant a new trial. It is said, that all the evidence is now before us. If so, we cannot say that the verdict is against law, nor against evidence, nor against the weight of evidence. We are therefore constrained to overrule the motion for a new trial.

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