Hudson v. Cheatham , 28 Ky. 50 ( 1830 )

Judge Buckner,

delivered the opinion of the court.

This is a suit in chancery, instituted by the plaintiff in error, against J. W. Cheatham, and Edmund Cheatham. He alleges, that on or about the first of April, 1818, they had executed to him a note, for the payment of $300 32 cents, for a full, fair, and valuable consideration, payable on or about the 25th of July, 1818, on which two payments had been made, one for $125, and the other for 85; that the residue of the Sum has not been paid; and that he had casually lost the note. He demands answers to the allegations of his bill, and prays for a decree against them, for the amount due.

The bill was taken as confessed against J. W. Cheatham. Edmund Cheatham answered, expressly denying the allegations of the bill, as to the execution of the note described; and stating that he had not at any time, executed any note whatever to Hudson, and that he did not even know any man by the name of Martin Hudson.

The circuit court upon the hearing of the cause, dismissed the bill as to Edmund Cheatham, and entered a decree in favor of Hudson, against the other defendant. To reverse the decree so far as it dismisses the bill against Edmund Cheatham, Hudson prosecutes this writ of error.

The decree was correct. To the positive denial of the execution of the note, upon which the plaintiff’ in error founded his claim for relief, there is opposed, the deposition of one witness only; and he does not pretend to say, that the note was executed by Edmund Cheatham; although if it was the fact, he must have been able to state it, as he appears to have been a subscribing witness to it. Pie states that the note, with the names of each of the alleged obligors, was written by J. W. Cheatham. Edmund was not even present. The only proof against him is, the deposition of the same witness, who states, that a note for about the same amount, purporting to have been executed by both of the defendants to the- bill, was exhibted to him, some months after its date, when he was asked by son, (who told him, that his brother J. W. Cheatham, had signed his name to it) if it was good; to which he-replied, it was as good as if he had signed it himself. This evidence is insufficient to prove the execution of the note when opposed to the positive denial of the defendant in error.

Triplett, for plaintiff; Crittenden, for defendant.

The decree of the circuit court must be affiirmed. with costs.