The opinion of the court was delivered by
Brewer, J.:
*1331. Proof of ex-ecútion of note. *132This was an action on a promissory note. The answer denied under oath the execution of the note. *133Upon the trial the court permitted the plaintiff to read the note in evidence without any proof of its execution, and charged the jury that the onus probandi was on the defend-ant to show that he did not execute it. This was clearly wrong. The plaintiff alleged the execution of the note. By the sworn denial, that execution was put in issue, and on that issue the plaintiff had the affirmative.
2. Deposition; competency of evidence. ' We see no error in the admission of the deposition of H. H. Lowrey. The objections of counsel go rather to the effect and weight of the testimony, than to its competency. ° J x J The witness testifies, not to the genuineness of the signature to the paper offered in evidence, but to circumstances tending to show that the defendant did in fact, at the time of the date of the note, execute such a note. This we think was perfectly competent.
The judgment, however, for the errors noticed must be reversed, and the case remanded for a new trial.
All the Justices concurring.