Slone v. Thomas

• Decision Date: 01 July 1849
• Citation: 12 Pa. 209
• Parties: SLONE v. THOMAS.
• Court: Pennsylvania Supreme Court

12 Pa. 209

SLONE v. THOMAS.

Supreme Court of Pennsylvania.

IN error from the Common Pleas of Warren.

Brown, for plaintiff in error.—The same proof of execution is required when the instrument is lost as when produced: 6 W. 228; 3 Whart. 424; 1 Stark. Ev. 340, and n. d.; 1 Greenl. Ev. § 528, n. 3. In such case there must be such knowledge as enables the witness to swear to his belief on the subject: 2 Stark. Ev. 372; 6 S. & R. 568; 10 Ib. 110; 14 Ib. 372; 1 Penn. 216. Under the ruling of the Court, the wisest course in all cases of doubt would be to lose the instrument.

Curtis, contra.—The circumstance that an examination was made with intent to purchase, by one familiar with the handwriting of the drawer, without any suspicion arising, is surely evidence from which a jury may infer the genuineness of the note.

ROGERS, J.

We are unable to perceive such evidence of the existence of the note, on which the suit is brought, as the law requires, before proof can be given of its contents. There is but one witness to this essential point. It is true, the witness swears that he is acquainted with defendant's handwriting, from having had business transactions and connexions with him, and it did not occur to him when he saw the note but that it was genuine. The witness was trying to buy the note. The most that can be made of the testimony is that the witness took it for granted it was the defendant's note, merely because a note which was said to be his, and which he was desirous of buying, was in the possession of the plaintiff. A question somewhat resembling this was decided at our last term in Pittsburgh, in the case of Brashears v. McArthur. The witness is not even willing to swear he believes the signature was the handwriting of the defendant; all he ventures to say is that it did not occur to him but that the note was genuine. Instead of swearing to his belief, he expressly says he formed no opinion of the handwriting then nor since; nor did he make any particular examination as to whose handwriting the signature to the note was. It would be dangerous, on such proof, to admit secondary evidence of its contents; for it is nothing more than the declaration of a person who at the time was interested in asserting that the note was a genuine paper. It would lead to great mischief if we should relax the rules of evidence as to this point. The evidence would be clearly insufficient proof of the note if produced, and less ought not to be required except in...