TAYLOR v. MORGAN

TAYLOR v. MORGAN. 1. When a plaintiff’s note is offered under a general plea of payment or set-off, it is necessary to prove its execution, otherwise it may properly be rejected. Wb.it of error to the Circuit Court of Dallas. Assumpsit by Morgan against Taylor, as the maker of a promissory note. The defendant pleaded non-assumpsit, payment and set-off; and at the trial under the latter issue, offered in evidence a note, purporting to be made by the plaintiff, and witnessed by one Taylor. The plaintiff objected to the note, that its execution should be proved by the subscribing witness, and the court having sustained the objection and rejected the note, the defendant excepted. This is now assigned as error. G. W. Gayle, for the plaintiff in error. Evans, contra cited Cass v. Northrop, [1 S. & P. 89,] and Carew v. Northrop, [5 Ala. Rep. 267.] [MAJORITY — GOLDTHWAITE, J.] GOLDTHWAITE, J. -The case of Cass v. Northrop, [I S. & P. 89,] seems to be decisive of this; indeed, the only difference between them is, that there, the making of the note offered as a set-off, was proved, but not its indorsement. Both, however, depend on the same principle, which is, that the several' statutes making writings evidence of the debt or duty promised by them, unless denied oil oath, do not apply except in cases where the writing is the foundation of the action. The necessity for this distinction will be apparent when it is considered that a different rule would expose the plaintiff to the plea of a lost release or other instrument in writing, by reason of which he would fail in his action, not being present to interpose the necessary replication of non est factum, on oath. [See Parks v. Greening, Minor 178.] Judgment affirmed.