Mitchell v. Simonds

18 La. Ann. 120

• Court: Supreme Court of Louisiana
• Decided: February 15, 1866
• Status: Published

Opinion

Jones, J.

This is a suit of Wm. C. Mitchell against J. S. Simonds, Curator of the succession of Thomas J. Pipkin, as the holder of a due bill executed by said Mitchell, on the 15th June, 1864, for the sum of one thousand dollars, and found among the papers of said succession, by said curator, to have said due bill annulled, cancelled and set aside, as the same had been paid while in the hands of said Pipkin.

The curator plead a general denial and a plea in reconvention.

The note sought to be cancelled is in the following words, to wit:

“ On demand, I promise to pay Mr. Thomas J. Pipkin, one thousand dollars, TJ. S. T. notes, it being borrowed money.

N. O., June 15th, 1864. Wm. C. Metohedd.

To be returned at the rate of gold at 190.

Neveatur. Estate of Thos. J. Pipkin. 31st July, 1864.

N. Bubnett, Notary Public.”

The burden of proof of payment is on the plaintiff. Under the law,, payment can be proved by one witness. 1 N. S. 6016, Parnel v. Cal et al. 2 An. 1036, Palmer v. Dinn. But in this case there is one witness, sustained by corroborating circumstances, to prove payment of the due bill sought to be cancelled.

For these reasons, it is ordered, adjudged and decreed, that the judgment of the lower Court be sustained ; the succession to pay costs of appeal.