Thompson v. Abbott ( 1860 )

Wright, J.

I. The affidavits for a continuance were defective in not showing that there were no other witnesses by whom the facts stated could be proved.

II. The plaintiff was not bound to prove the execution of the notes until the same was denied under oath. (Acts 1853, chapter 108, section 1.) It will be observed that the language of the law is that the execution, not the signature, shall be denied under oath. And this sworn denial, a defendant can as well, and is as much bound, to make, when the note purports to be signed by an agent or another for the party sought to be charged, as when made by the party in person, The question, as to what proof' is necessary to establish the agency of a person who professes to act for another, does not in our opinion arise in this case. If the execution of the notes had been denied under oath, the inquiry might have become pertinent.

IN. Appellees admit that the judgment is excessive, and remit all but the sum of $1544,33, for which sum, with interest from the time of the judgment in the court below, judg-. ment will be rendered in this court, appellee paying the costs of the appeal.