Viles & Atkins v. Moulton
Supreme Court of Vermont
Assumpsit, in the common form, on a promissory note. Plea, general issue. Upon the trial in the county court, the plaintiffs offered testimony tending to prove, that the note described in the declaration had been lost since the commencement of this suit, to which the defendant objected, upon the ground that there was no count .upon a lost note. The court overruled the objection and admitted the evidence.
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Assumpsit, in the common form, on a promissory note. Plea, general issue. Upon the trial in the county court, the plaintiffs offered testimony tending to prove, that the note described in the declaration had been lost since the commencement of this suit, to which the defendant objected, upon the ground that there was no count .upon a lost note. The court overruled the objection and admitted the evidence. The plaintiffs then proved that on the 2d of January, ] 832, the date of plaintiff’s writ, the note in question was in the hands of their attorney, J. Col lamer; that afterwards, and after a…
1Opinion of the Court
The opinion of the court was delivered by
Williams, Ch. J.
This was an action on note. The note was not produced in evidence, but the plaintiff endeavored to prove its loss and contents. The first objection which was raised on the part of the defendant was, that there was no count in the declaration upon a lost note. We think that there is no necessity for such a count in any case. Whenever it becomes necessary to make a profert of an instrument, if it is lost, there must be an averment of the loss. But, in a declaration on a note, no profert is made.— It is not usual, and not required in the…
2Cited by10 opinions
- Lunn v. GuthrieSupreme Court of Iowa · 1902
- Andrews v. AldrichSupreme Court of Vermont · 1932
- Hough v. BartonSupreme Court of Vermont · 1848
- Moore v. FallSupreme Judicial Court of Maine · 1856
- Bare v. FordSupreme Court of Kansas · 1906
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