Latapie v. Gravier , 6 Mart. 316 ( 1820 )

Mathews, J.

delivered the opinion of the court. This is a suit brought by the appellee, who was plaintiff in the court below, on a lost note of hand ; stated to have been made by the defendant, payable to one Pierre Durive, and by him regularly transferred to the plaintiff, for a valuable consideration, by indorsement.

East’n District. June, 1820.

The existence and loss of a note, such as is described in the petition, are proven by two witnesses ; but neither of them was acquainted ; with the hand-writing of the alleged drawer, so as to establish the genuineness of his signature. This fact the plaintiff offered to prove in the district court by the testimony of the payee and indorser, who was rejected by that court as an incompetent witness, and, to the opinion of the judge thus rejecting him, a bill of exceptions was taken, on the part of said plaintiff. On the propriety or incorrectness of this opinion we deem it unnecessary to decide, as it is believed that the record contains, independent of the testimony of this rejected witness, sufficient evidence to authorise a judgment against the defendant, viz. his acknowledgement, as proven by one of the witnesses, that he had made the note, as described in the plaintiff’s petition. No injury can result from compelling the defendant to pay, in the manner decreed by the court below ; as security is required from the plaintiff against any injury or loss, which might arise from any further claim on said note.

It is, therefore, ordered, adjudged and decreed, that the judgment of the district court be affirmed with costs.

Seghers for the plaintiff. Carleton for the defendant.