Thomas v. Waterman ( 1843 )

Hubbard, J.

Several objections are taken to the plaintiff’s recovery, which will be considered briefly.

1. It is contended that the note mentioned in the defendants’ undertaking was barred by the statute of limitations. But this is not a presumption of law. It may have been witnessed. It may have been acknowledged in writing on the note, by the signer, that it was due and unpaid. A payment might have been made upon it and indorsed within six years. Nor does it follow that it could not be sued by the indorsee, if the promise was renewed; and if sued in the name of the payee, the suit would be for the benefit of the true owner. And the fact that the defendants received the note as security is prima facie evidence of its value. We are therefore of opinion, that if the note was barred by the statute, then it was incumbent on the defendants, who took it after six years had elapsed from its date, to show the fact.

2. It is said by the defendants that they have received nothing upon the said note since it came into their possession: But the true answer to this allegation is, that if they have not, they should return it; and they have neither done that, nor offered evidence that it has been lost.

3. In regard to the offer of indemnity, we think it unavailing, because, as the plaintiff had delivered the note to the defendants, if he should sue the note and attempt to enforce a recovery upon it, and should not produce it in evidence, he could prove the loss only by the defendants; and before they would be permitted to testify as to the fact of loss, the plaintiff must cancel their obligation or agreement, and it would therefore be a vain indemnity.

4. In regara to striking out a part of the deposition, we think the part, in which the witness told the defendants that he did not know as he owed his brother any thing, was properly rejected. It was objectionable on the same principle that hearsay evidence is rejected; as it was his mere declaration, not under oath. The defendants, who took his deposition, in order to have availed themselves of such a fact, should have put the question to him directly, whether he owed the note or any part of it; and this they have not done.

On the whole, the defendants took the note for value, as security for a debt which has been paid, and they are called upon to return it; and they are bound to do it; and as they show no le gal reason for not doing it, they are therefore responsible in damages. They have not shown that Azel Thomas, the promisor, is not able to pay the note, nor have they asked him as to his ability, though they have taken his deposition. Nor have they proved that he would not have paid it, if he had been sued. The jury, upon the facts, have assessed damages for the plaintiff to the amount of the note. But though they were not bound to give him the nominal amount of the note, yet they were at liberty to do it.

We do not think that any of the objections against the ruling of the presiding judge in the court below are of sufficient weight to cause us to grant another trial.

Exceptions overruled.