McCann

delivered the opinion of the Court, (C. J. Lyons absent.) This was an action brought by McCann, the plaintiff in the Court below, against Beach, the defendant, upon a written contract executed by the plaintiff and defendant. The plaintiff gave notice in his declaration of the loss of the contract by fire, and that he should prove the contents by parol evidence. The defendant demurred to the complaint, and other proceedings were had which it is not the purpose of the Court here to advert to.

Upon the trial of the cause in the Court below, the plaintiff introduced in evidence the following affidavit: “State of California, County of San Francisco. This 24th of September, 1850, personally appeared before me, Wm. Rabe, notary public, appointed and sworn to act for said county, John E. Lauer, personally known to me, who declares that the fire which, on the 14th of June, 1850, destroyed the store of Dr. Wm. Rabe, with its contents, also consumed a large leather trunk of Ferdinand McCann, stored in said store at said time, containing McCann’s clothes and papers. Sworn, &c.” The defendant objected to the affidavit of Lauer for want of notice. The plaintiff then introduced the deposition…