The draft not being produced on the trial, the *536question is, whether the evidence, that was offered to show a bona fide and diligent search for it, is sufficient to authorize the admission of secondary evidence to sustain the action. That the search has been bona fide cannot well be called in question; because it has been made by the bank who allege a lawful claim and title to it, and the party liable to pay is agreed to be of ample property. What then is the evidence of a diligent search ? The draft bore date March 12th 1835. It was drawn by M. B. & G. W. Foster, who were then copartners, was payable to their own order, and was accepted by the defendant. We may well infer, therefore, that it was once in the possession of the drawers. Before the draft fell due, a paper purporting to be the acceptance was offered to the bank for discount, which was in fact only a copy of it; but the discount was made for the account of the Fosters.

The history of the drawers is short. They appear to have failed in business in the spring of 1835, and shortly after the discount was obtained. In September 1835, M. B. Foster was committed to the state prison for forgery, where he remained till his death, which took place in August 1838. During the year 1835, G. W. Foster absconded and went to New York, and lived there three or four years; after which nothing further is known of him. M. B. Foster died unmarried ; there has been no administration on his estate ; and he left no papers in the state prison. Shortly after the failure of the firm, G. W. Foster delivered a trunk of papers to the bank, which he said contained all the pa pers belonging to the firm, except some that were in the possession of M. B. Foster. Inquiry for papers was made of the rela tives, and, among them, of the wife of G. W. Foster. She gave up what papers she had, which she said her husband gave her on leaving the country, saying they were all his papers. Among these was the account of sales signed by the defendant Mackay, for the balance of which the acceptance was given.

On the review of the endeavors of the party in interest to prc cure the original acceptance, or to ascertain what became of it, we think reasonable diligence has been shown, and that the inquiries have been pressed in the proper quarters. The sources of *537inquiry appear to be exhausted. The existence of the paper, at a former period, was proved or admitted. There was no evidence of its indorsement or delivery to any other person; and there has been a lapse of eight years without any claim by third persons for payment. Greenl. on Ev. § 558.

It is said, however, that the affidavit of the plaintiff is not produced ; and it is argued that it is an inflexible rule that the plaintiff’s affidavit must be offered in the case. But we are of opinion, that while it is a general rule that the affidavit of the plaintiff must be produced, where a paper is alleged to be lost, of which he must be presumed to be in custody, before secondary evidence of its contents can be admitted, yet that the rule is not inflexible. And in a case like the present, where the nominal party to the record is not the party actually seeking to recover ; and the party interested has used due diligence to find the plaintiff, and produces proof that he has absconded, and has gone from the Commonwealth, and to parts unknown, we are of opinion that the party in interest has done, in this respect, all that can be reasonably required of him, and that the production of the affidavit of the absent party to the record may be dispensed with.

It is suggested that the party to the record designedly de stroyed the acceptance, and therefore the secondary evidence cannot be admitted ; but there is no proof to sustain the suggestion. It rests in suspicion ; and if there were grounds for such belief, still, unless done before the bank acquired their title, whether under the assignment or by the discount of the copy of the draft, the destruction of it would not be sufficient to exclude the evidence.

It is also argued that exceptions, in a case like the present, will not lie to the ruling of the judge: that it was merely a question as to the sufficiency of the evidence, and not a question of law for the consideration of the court. But we are of opinion that the admission or rejection of evidence does not rest in the mere discretion of the judge who tries the case, but upon rules and principles of law, framed and adapted to promote justice between parties in difference; and that where a judge errs ir the *538admission of testimony not admissible by the rules of law, or rejects testimony which ought to have been admitted, such error is ground of exception, though he himself, and not the jury, may be called upon in the first instance to weigh the evidence. The judge is to consider the preliminary evidence, and he is of course to decide whether it is credible or not; and his decision as to its credibility, like that of a jury, is conclusive. But in his decision as to its admission, he must be governed by the rules of law. If it were not so, it would be difficult to see how questions of a character similar to the present could have been presented for adjudication, and upon which legal rules have been framed.

Upon a view of all the facts, we are of opinion that the learned judge erred in rejecting the secondary evidence, and the exceptions are sustained. The verdict is set aside, and a trial is to be had at the bar of this court.