Bain v. Walsh

26 A. 1001, 85 Me. 108

• Court: Supreme Judicial Court of Maine
• Decided: November 7, 1892
• Status: Published

Opinion

Virgin, J.

Assumpsit on a promissory note alleged to have been given on October 13,1883, to the plaintiff by the defendant’s intestate who deceased April 9, 1890.

The non-production of the note at the trial was attempted to be accounted for by the contention that it had been lost.

The evidence of the loss adduced to lay the foundation for introduction of secondary evidence of its contents, is addressed solely to the discretion of the presiding justice ; and his decision upon its sufficiency, in the absence of any apparent abuse of his authority, is not reviewable. Camden v. Belgrade, 78 Maine, 204, 209.

The only evidence of its loss came from the plaintiff herself, who simply testified that she had not been able to find the note since the date of the maker’s decease in April, 1890; nor had she assigned or transferred it since that date. She omitted to testify by affidavit whether or not it was lost prior to that date.

Bxceptions overruled. JSTonmit confirmed.

Peters, C. J., Walton, Libbey, Foster and Haskell, JJ., concurred.