Weaver v. Cox

Merrick, C. J. This suit is brought upon a draft alleged to have been destroyed by the explosion of the steamboat Princess. Defendants appeal. It is objected, that the circumstances tending to show the loss arc not supported by the oath of the party; that the loss ’ of the note was not advertised until after this suit was commenced; that the plaintiff has not been required to give bond against the future appearance of said draft; and that the court erred in rendering judgment for interest. Where the destruction of an instrument is shown by direct testimony, the oath of the party is not required by Art. 2258 of the Civil Code. Art. 2259 only requires that the loss be advertised within a reasonable time, and this may be done in a proper ease as well after as before suit brought. Moreover, where tho paper .is shown to he destroyed, no advertisement is required. 8 An. 131. It does not appear that the defendant asked for security in the lower court under Art. 2258 O. C. In the absence of such requirement in the lower court, we cannot say that the District Judge erred on this part of tho case. The judgment bears only five per cent, interest, which is given by the Acts of 1852, p. 95, and 1855, p. 353. The authorities cited by defendant are decisions prior to these statutes. Judgment affirmed.