Bagley v. Eaton , 1 Cal. Dist. Ct. 186 ( 1857 )

Hager, J.

The bond is sufficient evidence of the making of the notes therein described. The affidavits of plaintiff and Sinton are addressed to the court for the purpose of accounting for the non-production of the notes sued upon, and laying the foundation for secondary evidence, and are not evidence for the jury. These affidavits show that the maker of the notes peaceably acquired their possession and destroyed them with plaintiff’s consent. Under these circumstances, I feel it my duty to instruct you that there is no testimony to show that there is any amount due upon the notes sued upon. This is the third trial of this case, but it is the first time it has come up in this form; heretofore Sinton was introduced by plaintiff as a witness, and explained the delivering of the notes to the maker.

I can only regard the afiidavits as in evidence to satisfy the court the notes cannot be produced upon this trial, and to authorize secondary proof of their contents; but as they trace the notes to the possession of their maker, and disclose that they were destroyed by him vtith plaintiff’s consent, it raises no presumption that they were unpaid in whole or in part; but on the contrary, regarding the affidavits only as proving the destruction in the manner disclosed—by the maker with the consent of the owners—it raises an opposite presumption in favor of the former, which plaintiff is bound to explain by additional evidence. The affidavits themselves contain an explanation, but in this respect they go beyond their true purpose. Defendants had no opportunity to cross-examine the affiants, and this court cannot give any greater force and effect to the affidavits than was asked for them when they were introduced, .and there is no proof to rebut the presumption in favor of the deceased maker of the notes.

If plaintiff can recover upon the testimony as it now stands, then any person who pays a note, takes it up and destroys it, may be compelled to pay it a second time if he is not prepared to defend by proof of actual payment. Merely taking up his note and destroying it would be no protection, if the then holder could, as the plaintiff here has attempted to do, compel him afterwards, by bringing suit and making affidavit as in this case, to show an actual payment. To establish such a principle of law, would pot only be dangerous, but also be taking away what has been regarded as the best and most ordinary protection and safeguard that a party has when he makes payment of obligations of this kind.

The jury found in favor of the defendants.