18 Ind. 73 | Ind. | 1862
This ease is before us on the evidence, which in our opinion is clearly insufficient to sustain the finding and judgment below.
A promissory note was filed in the Court below on behalf of Saioyer against the estate of Mahon, deceased, which purported to have been executed by the deceased to Sawyer in 1842. Mahon’s administrator contested the claim, but it was allowed.
On the trial there was no proof whatever of the handwriting of the deceased, or of the execution of the note by him. This was necessary, the statute requiring the execution of written instruments to be denied under oath, not being applicable. Riser v. Snoddy, 7 Ind. 442.
Again, it does not appear, nor is there any thing in the evidence from which it might be legitimately inferred, that the note was ever delivered to or accepted by Sawyer, or that it ever came into his hands. The first account we have of the note is that it was found amongst the papers of one George A. Fate, deceased, it not being shown how it came there. The administrator of Fate did not claim the note. The attorney of Fate’s administrator, being also the plaintiff’s attorney, and being authorized to attend to all his business, filed the note in behalf of the plaintiff. We suppose that a promissory note, to be binding, must be either actually or con
The judgment below is reversed with costs, and the case remanded.