Shaver v. Ehle

Per Curiam. According to the decision of this Court in ° the case of Herrick v. Whitney, (15 Johns. Rep. 240.) [202] Louclcs was an incompetent witness to prove the making of the note. Although he sold it upon condition that it was to be collected at the risk of the plaintiff below, that means the risk of the defendant’s solvency, not the risk of the note being a forgery. But independent of this objection, the evidence was not sufficient to warrant a recovery. The witness spoke to the defendant about a note which the defendant had given to Holmes, or bearer, without mentioning date or sum, and the defendant acknowledged, that he had given a note to Holmes. No note was produced, and shown by the witness to the defendant, and the identity of the note to which the defendant’s confession related, is not proved with reasonable certainty. Although from the defendant’s confession, it appears, that there was a genuine note from him to Holmes, or bearer, in existence somewhere, non con-stat, but that the note produced on the trial was a forgery; and-if so, the maker will have to pay the genuine note, notwithstanding the recovery against him in this suit. The relaxation, in respect of negotiable paper, of the rule requiring the production of the subscribing witness, (a) would be very unsafe, unless great strictness and certainty were required, in the secondary proof. On both these grounds, iherefore, the judgment ought to be reversed. Judgment reversed. Footnotes [(a)] Vide Hall v. Phelps, 2 Johns. Rep. 451.