Lindsay v. Kendrick & Co.

By the Court.

Lyon, J.,

delivering the opinion.

1. The original draft, with Lindsay’s acceptance on it, or rather the paper which was the foundation of the suit and declared upon as his act, Lindsay not only did not deny, on oath, as required by the statute, in order to put its execution in issue, but at trial term, at common law, confessed a judgment on its evidence, to the plaintiff, and took an appeal. While the appeal was pending, that original paper on which Lindsay had confessed judgment, was burned. These facts, in the absence of a plea denying the paper sued on to be his, were proper to be submitted to the jury, and sufficient to warrant a finding against the defendant.

2. A party is not obliged to establish a lost paper, under the Judiciary Act, but may, by showing its loss or destruction, as in this case, give in secondary evidence of its contents, and upon sufficient proof, recover on it as a lost or destroyed paper. See Ross & Co. vs. Wright, 12 Ga., 509.

Judgment affirmed.