Lewis v. Splane

The judgment of the court was pronounced by King, J. A motion has been made to dismiss this appeal, on the ground that the bond furnished by- the appellant is not for a sum- exceeding by fifty per cent the amount of the judgment appealed-'from. The bond given by the appellant, probably from some inadvertence or error of calculation, is for about $18 less than-the sum-required bylaw for a suspensive appeal, but is for an amount more than sufficient to- cover the costs. In- the case of Balph v. Hoggatt, lately decided, ante p; 462, we held this to be an-insufficient cause for a dismissal, and: that the case would-be considered as pending-before us on a devolutive appeal.See also Parks v. Patton, 9 Rob. 167. The defendant has appealed from a judgment' rendered’ against him for the amount of a promissory note, with interest from judicial- demand. He-complains that the court below has not allowed, in part extinction of the plaintiff’s demand, a draft which is averred in the answer to have been lost or mislaid. We think the judge did not err. The loss of the instrument has not been shown either by direct testimony, or by such circumstances, supported by the oath of the party, as render the loss probable, which was an indispensable prerequisite fo proving its contentó. Nor does it appear that the loss was advertised in a [755] public paper, which the law deems equally necessary to a recovery in all casos, where a lost instrument is made the foundalion.of.a suit or defence. C. C. arts. 2258, 2259. Judgment affirmed.