Donelson v. Taylor

25 Mass. 390

• Court: Massachusetts Supreme Judicial Court
• Decided: September 25, 1829
• Status: Published

Opinion

Per Curiam.

There appears to have been sufficient evidence that the note was lost, to let the plaintiff in to prove the contents. The affidavit of Donelson was properly received, in order to satisfy the Court that the note was not in his possession nor anywhere within his control. The evidence of the loss was rightly directed to the Court. And as to the clerk’s not saying he had searched his files, it ought to be taken as a fact that a search was made. His testimony would have been a fraud on the Court, if he had not looked among his files for the note.

The testimony of Barber would have been rejected, if it had been offered to the jury, because his indorsement of the writ made him interested. But if his affidavit might not, like that of the plaintiff, have been received on a preliminary question to the Court, still the objection came too late, being after he was sworn and examined. This was a waiver of the objection, the evidence of his interest beiftg within reach of the defendant’s csunsel when he was offered as a witness.

Judgment for the plaintiff.