Samuel Marfield vs. James Davidson, 8 G. & J. 209

AucheR, Judge, delivered the opinion of the court. The plaintiff had offered in evidence without objection, that Lupton, who was proved to be the purchaser of the boy in controversy, had for the purchase money given two promissory notes; he also gave in evidence, the date of the respective notes and the times when payable, all without objection; and then offered to prove the surrender up of these notes. The one in consequence of payment, and the other in consequence of the substitution of two other notes which were due at the time of the institution of the suit and then unpaid.

To the evidence of the surrender of the two first promissory notes objection was taken because they were not produced, and no notice had been given to produce them. To the evidence of the substitution of the two last notes for one of the surrendered notes, objection was likewise taken for the same reason. The court held both objections to be valid and excluded the evidence.

The plaintiff having offered evidence without objection, of the amount, dates and times when payable, of the two first promissory notes, and the consideration for which they were given, no objection could be urged to the admissibility of evidence in relation to the surrender as a fact, than could have existed against such evidence, had the notes been actually produced. Evidence had been permitted to go to the jury, which dispensed with the necessity of producing the notes or’ of giving notice to produce them.

To render the surrender, evidence, the ’ notes in general would have tobe produced, because the witness could not speak of them until they were before the court and jury, and because their identity could alone be established by their production. But here they are by consent offered to the jury, and their contents proven by consent; and being so proven, the identity of the notes given, and the notes surrendered, are just as certainly established, as if the notes were present in court; we therefore think, the court were in error in rejecting the evidence of the surrender of-the two first notes.

The same principles will likewise render admissible the evidence offered of the substitution’ of the two last promissory notes for the unpaid note. The plaintiff had given evidence of this unpaid note without objection, and having done .so, it was in our opinion competent to prove the consideration of the two last notes,by establishing the fact, that they took the place of the note he had by consent proven to exist. On the right, of the .plaintiff to recover in this action, we express no opinion, the prayer being general — see act of 1825, ch. 117. JUDGMENT REVERSED AND PROCEDENDO AWARDED.