Peace v. Head

12 La. Ann. 582

• Court: Supreme Court of Louisiana
• Decided: July 15, 1857
• Status: Published

Opinion

Merrick O. J.

The Articles 2258 and 2259 of the Code relative to lost instruments, do not require that the party offering- secondary evidence of such instrument, shall state m the affidavit, that he has used due diligence to procuie the original. It is sufficient, if it appears from all the evidence, that the loss was advertised and the proper exertions were made to recover the same. The proof of loss which will authorize the introduction of inferior evidence, must depend on the particular circumstances of each case. 7 N. S. 548; 2 Ann. 195. The District Judge was satisfied with those proven in this case, in connection with the affidavit of the intervenor, which stated, among other things, that the instrument was lost, and that she was unable to produce it, and we cannot say that he erred in his conclusion.

Witnesses who were acquainted with Dr. J. Peace's handwriting, prove clearly the existence of the bill of sale from him to the intervenor,. and although there are circumstances which throw a slight suspicion over the title produced, we think the testimony unexplained must conclude the. administrator, as it would have done the intestate.

Judgment affirmed.