Peabody v. Denton

19 F. Cas. 38, 2 Gall. 351

• Court: U.S. Circuit Court for the District of Massachusetts
• Decided: May 15, 1815
• Status: Published

Opinion

STORY, Circuit Justice.

I have no doubt, that the copy is admissible, to prove that such a paper was exhibited to the notary, though it could not of itself be evidence, that the paper was genuine. Connected with the testimony of the witness, however, it affords a fair ground of presumption, to be left to the jury, that the paper copied by the notary was the same, whieh the witness carried to Aux Cayes, and which was there rec-ognised by Denton.

Mr. Prescott then objected to the competency of the whole evidence to support the plaintiff’s action, contending that there was no proof of the signing of the note by Nathan Brothers and Co., and that the note might still be in existence, and be again demanded of the defendants by a bona fide holder.

NOTE. It appeared that the defendants were domiciled in a foreign country, which was a sufficient answer to the plea of the statute of limitations, unless it were shown by the defendants, that they had been within the country since the making of the note.

But it was the opinion of THE COURT, that after so great a lapse of time, .it was incumbent on the defendants to show, either that the note existed, or that it had been demanded of them; and that it must be presumed, that no demand would now be made.

Verdict for plaintiff.