If the letter of Boyce, dated Jan. 12, 1873, was competent, the letter to which it was an answer was also competent, and its loss being accounted for, evidence of its contents was admissible. Packard v. Putnam,57 N.H. 43, 50. The plaintiff declared upon a contract between himself and the defendant, in which the defendant agreed to purchase a judgment in favor of Boyce against one Sumner at a certain discount, provided Boyce would consent to it; and he alleged that Boyce did consent. This made the question of Boyce's assent material; and the letter written by the plaintiff asking Boyce's consent, and his reply, were competent on that question.

The defendant's offer to show what Stalbird told him he said to the plaintiff was hearsay and immaterial. The question which it was proposed to ask the defendant was properly excluded. It appears from the deposition of Stalbird, which is made a part of the case, that the defendant said something to Stalbird about the execution, of which he informed the plaintiff; that some two or three years after, the defendant and Stalbird had some talk about the conversation; that just prior to this suit the defendant and Stalbird had another conversation, in which the defendant asked Stalbird to try to remember what was said about the execution, but Stalbird did not remember what it was. The defendant claims this testimony tended to contradict Stalbird. But the fact that he was requested to remember the conversation did not tend to show that he stated untruly when he said he did not remember it.

Exceptions overruled.

BLODGETT, J., did not sit: the others concurred.