Citation Numbers: 34 Me. 472
Judges: Tenney
Filed Date: 7/1/1852
Status: Precedential
Modified Date: 9/24/2021
In answer to a question interposed by the defendant’s counsel, whether a note or receipt was taken for the sum, which he had before stated on the plaintiff’s examination, he had paid to the defendant, the witness said, that he sent the money in a draft, in a letter to the defendant, and he exhibited a paper to the defendant’s counsel. Whereupon the inquiry was made in behalf of the plaintiff, if that was the defendant’s acknowledgment of the receipt of the draft, which the Court allowed against the defendant’s objection. The witness did not attempt to give the contents of the paper exhibited further than was demanded by the question of the defendant. The witness’ full affirmative reply to that question, when he produced the paper, by supplying the elipsis, would be, “ the defendant did give me a receipt for the Sum.” The answer as given to the plaintiff’s question is substantially, “ this, (referring to the same paper) is the acknowledgment by the defendant of the receipt of the draft.” The latter was
The direction given by the plaintiff’s intestate to the witness, at the time he placed the money in his hands, were clearly a part of the res gestee, and therefore admissible, and this ground of exception does not seem to be relied upon by the defendant.
The plaintiff’s affidavit, allowed to be read to the jury, was incompetent, the defendant objecting. A party may sometimes show the loss of a paper in this mode to the Court, in order that the secondary evidence may be introduced, but it is not admissible as facts for the consideration of the jury. It was read in this case, to show that written evidence of the plaintiff’s alleged indebtedness did not exist. This was thought by the plaintiffs counsel at the trial, to be material, or it would not have been adduced. It was in no respect different from that which would have come from a person shown to have been the depositary of the intestate’s papers. The affidavit also states, that inquiries were made of persons, supposed by the plaintiff to have had possession of the papers of his intestate, and he was unable to find them, implying, that those of whom he inquired could give no account of such papers. There is nothing showing, that the plaintiff made any personal examination of the papers of the persons, of whom he sought information, and the inference is, that he was informed by them, that such papers were not in their possession. An inference founded upon hearsay, is not more admissible than a fact obtained in like manner.
Exceptions sustained, new trial granted.