1. The objection to the form of the action is not tenable. The note declared on, according to the theory on which the plaintiff’s case proceeded at the trial, has not been paid, taken up, cancelled or destroyed. It was in the hands of the intestate at the time of his decease for safe keeping, and in trust for the plaintiff. On his death it went into the hands of the defendant in his capacity as an administrator, to be held in the same manner and for a like purpose. It is a valid, subsisting debt against the estate of the intestate. To say that the remedy of the plaintiff is only by an action in the nature of trover against the defendant for his tortious act in refusing to surrender the note to the plaintiff on due demand would be to compel her to seek redress by an action against him in his ndividual capacity for a conversion of the note, instead of allowing her rightful claim against the estate of the intestate in his hands for the amount of the note. Doubtless he may be individually liable for such conversion, but his wrongful act in retaining and withholding the note cannot take away her right to receive the debt from the assets of the deceased. If the intestate in his lifetime had refused to surrender the note to the plaintiff, it is clear that an action of assumpsit to recover the amount could have been maintained. Smith v. M'Clure, 5 East, 477. Or the same principle, if an administrator wrongfully *209withholds a note due from his intestate an action will lie on the note to recover the amount in the form of a judgment against the assets of the deceased. The note is still a valid claim against the estate. It cannot be proved by the best evidence, for the reason that the administrator refuses to give it up or to produce it. Such refusal renders secondary evidence of the contents of the note competent and sufficient to warrant a recovery for the amount. The absence of the note affects only the nature of the evidence necessary to support the action; not the form of remedy.

2. A sufficient consideration for the note was clearly proved, and found by the jury under the instructions given by the court. Of the value of the services rendered by the plaintiff to the intestate, or of the loss and injury which she had sustained in her feelings and worldly situation and prospects by the delay of the deceased to fulfil his promise of marriage, no evidence was offered. These certainly constituted a valuable consideration for the note, and, there being no evidence of their inadequacy or insufficiency, the presumption arising from, the fact that the note was expressed to be for value received is to have full effect, and well supports the verdict. The fact that other motives entered into the mind of the intestate and induced him to give th note, in addition to those which constituted a valuable consideration, has no tendency to show that the latter did not exist, or that they were insufficient to support the promise. The finding of the jury negatives the theory that the note was intended as a donatio cantsa mortis.

3. The inquiries put to the plaintiff’s witness on cross-examination concerning the date of her marriage, and the exhibition of certain papers to her in connection with such inquiries, were rightly excluded by the court. They related to matters entirely collateral and immaterial to the issue between the parties. So far as they had any tendency to contradict the witness or disparage her character, it was within the discretion of the presiding judge either to allow or reject them. On all matters not relevant to the issue, the extent of cross-examination is to be regu lated by the judicia discretion of the judge at the trial.

*2104. The testimony of the witness to the fact that the note declared on was in the handwriting of the defendant and bore his signature was clearly competent. Indeed it was the only evidence on this point which was within the reach of the plaintiff, or of which this part of the case was susceptible. The non-production of the note rendered the best evidence unattainable, and a resort to evidence of a secondary nature was necessary and proper. To hold otherwise would enable a party, by wrongfully withholding a note, effectually to prevent any proof of its existence from being offered in a court of justice.

5. Evidence that the defendant gave notice to the intestate not to bring the plaintiff to his house was inadmissible. It had no tendency to disprove the facts on which the plaintiff relied, but was a separate and independent occurrence at which the plaintiff was not present, and of which she had no knowledge.

6. But for a similar reason the letters of Mrs. Smith, which were offered by the plaintiff and admitted in evidence, should have been excluded. The gist of the inquiry before the jury was, whether the intestate at the time the note in suit was given or previously had made a promise to the plaintiff to marry her, which he had failed to fulfil, and the performance of which was suspended at his instance and request. The letters offered in evidence might have been competent, as bearing on the subject of inquiry, if it had appeared that they were written at or about the time the note was given, and if it had also been shown that they were known to the intestate. Accompanied by such evidence, the letters might have had some tendency to prove the nature of the relation which subsisted between the plaintiff and the intestate, and that the note was given in whole or in part for the consideration alleged by the plaintiff. But in the absence of any such evidence, they were clearly irrelevant. The intestate could not be affected, or the state of his feelings and intentions towards the plaintiff be shown, by proving facts, of the existence of which it did not appear that he had any knowledge As we have no means of knowing how far the contents of those letters may have affected the minds of the jury, we are con strained to send the case to a new trial. Exceptions sustained.