Scherer v. Upton

Citations

• 31 Tex. 617

Syllabus

<p>In suits upon lost notes or bonds, the rules of evidence recognized by the common law and in equity have not been changed by the statutes of this state, except in the case of recorded instruments, private instruments filed in the office of some alcalde or judge of Texas previous to the 1st Monday in February, 1837, and instruments or notes filed in some suit brought upon them in some other court of the state: in all of which cases certified copies are constituted original evidence. (Paschal’s Dig., Arts. 3706, 3715-3718, Notes 832, 839-842.) In all other respects the rules of evidence in regard to them continue the same, both in equity and at the common law.</p> <p>The jurisdictions being blended in our system, if the rule of evidence in either be applicable, the courts are authorized to appropriate it sub modo.</p> <p>Where the petition described the note and averred its loss by the agent, and the agent swore to the petition, and the defendant did not deny the sworn petition, but pleaded failure of consideration, no further proof of the execution of the note was required.</p> <p>Where a note was given for the hire of a slave, an escape of the slave, whereby the hirer lost his services, did not entitle the hirer to deduction, unless the owner was in default ¡or guilty of some concealment of the slave or other wrong.</p>