Glassell v. Mason

STONE, J. We do not feel called upon to decide the question, whether a lust note or bond can be so endorsed or assigned as to vest the legal title in another. Under the Code, (§ 2129,) “ every action -.founded upon a promissory note, bond, or other contract, express or implied, for the payment of money, must be prosecuted in the [722] name of the party really interested, whether he have the legal title or not.” "We feel satisfied, that a debt created by bond, which bond has been lost, is still a debt or contract for the payment of money, and is embraced by the section of the Code above copied. [2.] The rule which requires preliminary proof of the destruction or loss of a written contract, before evidence of its contents can be received, is a rule affecting the grade of the evidence — not the measure of proof. It is a rule of law founded in good policy; a failure to comply with which does not simply leave the party’s evidence insufficient. It goes farther, and pronounces it wholly illegal. It is not one of the questions of fact within the issue before the jury. It is an outside inquiry, preliminary to the introduction of any evidence to the jury as to the contents. If this were not the case, a plaintiff who proved a just demand against the defendant, and the amount of it, must yet lose his case, if he failed to convince the jury that the written evidence of his contract was lost or destroyed. Suppose, in such case, the jury should return'a special verdict; and, in addition to finding the issue joined in favor of the plaintiffj should, of their own motion, further find that the note or bond was not lost. What judgment would be rendered on such verdict? Evidently for the plaintiff’, because the verdict, to the above extent, would not be responsive to the issue. The jury would be pronouncing on the legality, not the sufficiency of the evidence. This preliminary proof is always addressed to the court, and may be made by the party himself, when the facts are within his knowledge. — See 1 Greenlf. Ev. § 349, and note, § 558; Thomas v. DeGraffenreid, 17 Ala. 602; also authorities cited in Brister v. The State, 26 Ala. 107. The paper called an assignment was properly admitted in evidence. It tended to show the plaintiff’s ownership of the demand. [3.] Suits may bo brought on lost notes or bonds, and the plaintiff is not bound to make affidavit of the “loss and destruction, and the contents thereof, and that the same has not been paid, or otherwise discharged.” If [723] such affidavit be made, and accompany the complaint, it shifts the onus of proof; but this rule does not forbid a suit without such affidavit. — Code, § 2151; Bell v. Moore, 9 Ala. 824. The charges asked are easily disposed of. None of them ought to have been given. The fifth, which was given with a qualification, was too favorable to/defendant. In the absence of the bond, the plaintiff certainly could not recover, until he laid the predicate, by preliminary proof to the court of the loss or destruction of the bond, and then proved its execution and contents. Doing this, however, the law did not require him to prove that it had not been paid. This, in most eases, would be an impossibility. Judgment of the city court affirmed.