Clark v. Simmons

4 Port. 14

Opinion

HOPKINS, J.

— Upon the trial of the issue in this' case, in the Circuit Court of Jackson county, the plaintiffs in error, who were defendants in that Court,offered to read as evidence, an endorsement of a credit on the bond, on which the demand against them was founded. The endorsement is legible, although an attempt had been made to obliterate it, by drawing a pen over the lines. The Court in-sir acted the jury, that it was not evidence of a payment.

We are of opinion the Court erred in giving the instruction. If the endorsement had been so effaced, as to be illegible, a disinterested person who had seen it before the obliteration, would have been a competent witness to prove what had been the contents of it. The endorsement being legible, is proof of the same fact. It was competent evidence, and would show the right of the plaintiffs in error to the credit they claimed, until it should be disproved, or the effect of it explained away by tlie testimony of the party.

a

Let the judgment he reversed, and the cause remanded.

Reps, 341.