¶1— The question presented in this cause, is novel in this Court. The power of the Court to substitute copies of *843papers belonging to the cause, and which have been lost, or abstracted from the files, is undoubted, and is a power inherent in all Courts; nor can there be any doubt whatever of the power of the Court, to substitute the affidavit alledged to be lost, upon proof of its loss, and its contents. The difficulty in this case, arises from the fact, that the proof is made by interested witnesses, the sureties in the attachment bond.
¶2Parties to the suit, are admitted as witnesses to prove any collateral matter, which arises in the progress of the cause, which does not involve the matter in controversy, and which is addressed to the Court, and not to the jury. The proof .of the loss of a written instrument, so as to let in secondary evidence of its contents, is a familiar example, of the exercise of this power.
¶3The difficulty which has been felt in this case is, that the parties were permitted to prove,not only the loss of the affidavit, but its contents. But we think that this .comes within the general rule, as the party interested, would frequently be the only person who could prove the contents. Nor can we perceive any injury likely to follow from the adoption of such a practice, as the application could always be confronted with .counter affidavits.
¶4We think, therefore, that when the application is collateral to the main question, where it is merely auxiliary to the suit, addressing itself to the Court, and not to the jury; having no tendency, either to prove, or disprove, the matter in controversy, but relating to the preparation of the suit for trial, the parties to the record are competent witnesses.
¶5Considering these witnesses as competent, there can be no doubt of the correctness of the decision of the Court. They swear positively, that the affidavit was made, before the attachment issued, and this positive proof must outweigh the negative testimony, introduced on the other side.
¶6It results from this examination, that the decision of the Court was correct, and the application for a mandamus must be rejected.
¶7— The sureties of the plaintiff in the attachment, were interested to prove, that such an affidavit as the statute requires, was made; and, in my opinion, their testimony to establish that fact, should not have been received.