Hilborn v. Alford

Crocker, J. delivered the opinion of the Court—Norton, J. concurring. This is an action upon a promissory note, executed by Thompson & White, and purporting to be executed by the appellant by his mark. The defendant, Alford, denied under oath the execution of the note by him, and that was the only issue. The case was tried by the Court, a jury being waived, who found for the plaintiff, and the defendant, Alford, appeals from the judgment rendered thereon, and from an order refusing a new trial.

[484]The only error assigned is that the finding of the Court is against the law and evidence; that the evidence is insufficient, considering its character and all the circumstances, to prove the execution of the note by the defendant. We have carefully examined the evidence and are satisfied that it is sufficient to prove the fact in issue. It is true there was no attesting witness to the signature, but that is not indispensable. The execution may be proved by competent testimony in the absence of an attesting witness. (George v. Surrey, 1 Moody & Malkin, 516.) And even when there is a subscribing witness to a promissory note, it has been held that the admissions of the party of the execution of the note is as high proof as that derived from a subscribing witness. (Hall v. Phelps, 2 Johns. 451; Mauri v. Hefferman, 13 Id. 75.) So it is held that the declarations of the maker of a note may be resorted to, to prove the execution of the instrument, whenever proof of his handwriting can be resorted to. (2 Phil. Ev., C. H. & E.’s Notes, 441.) The proof in this case consists entirely of the admissions of the defendant made to the plaintiff and two' other witnesses, and we deem them sufficient to sustain the findings of the Court.

The judgment is therefore affirmed.