Rogers v. Miller

Citations

• 5 Scam. 333

Syllabus

<p>Appeal from Monroe.</p> <p>1. Process — running to a term. Where a writ is directed to the sheriff, commanding him to summon the defendant to appear on the first day of the next term, to be holden, etc., without specifying the particular time, the summons is neither void nor voidable, (a) </p> <p>2. Presumption — knowledge of term day. The time of holding the circuit courts is fixed by law, and every person not only has the means of knowing, but is presumed to know, when that time is.</p> <p>3. Lost Note — defective averment. The declaration, in an action upon a lost note, alleged that the defendants made their note to A, who on the same day endorsed it to</p> <p>the plaintiff, and further averred, “ that the said note has been lost or mislaid, [* 334] and cannot be found or producedHeld, that the matters stated were not sufficient to maintain the action; and if every fact averred were proved upon trial, the plaintiff would not be entitled to recover.</p> <p>4. Same — necessary averments. Unless a lost note has never been endorsed, or the endorsement be special, a recovery cannot be had on it without showing an absolute dest-uction of the note; and when the declaration shows that the note is lost, these facts must be averred specially. (b) </p> <p>5. Same — semble. That where a lost note has not been endorsed at all, or has been specially endorsed, a recovery may be had by showing the loss of the note merely, and its contents.</p> <p>6. Same. An averment that a notehus been mislaid has never been held sufficient to entitle the plaintiff to recover without producing it.</p> <p>7. Writing Lost or Mislaid — definition. A mislaid note is one that cannot be found in its usual and proper place of deposit. A lost note is one which cannot be found after that thorough, careful, and vigilant search, which the law requires to be shown before secondary evidence of its contents can be introduced.</p>