
    Cary against Campbell and Cook.
    ALBANY,
    August, 1813.
    Where, man a justice, the fgsu^wásjofned, delivered tfjg note on which the’ suit tefthe justice’ ™!'°> not find it, ¡‘ostfalid' titea evidence ofits “"tents to ^ was held’ to gnd^that^the secondary ev;dence -was no?: admissible3un.' cientproof, 0‘ notc-
    IN ERROR, on certiorari, from a justice’s court. Cary sued Campbell and Coolc, before the justice, on a promissory note. The defendants pleaded non assumpsit and a set-off. There was a trial by jury. The justice certified that the note was dev u v o livcred to him by the plaintiff when the issue was joined; but that on search he could not find it, and that he permitted the plaintiff io give parol proof of the note, though the defendants objected to it. The plaintiff proved that the note was given for a barrel of pork, for which the defendants were to pay 14 dollars; but that after they had taken the pork home and examined it, they found It not good, and came to the plaintiff who reduced the price to 10 dollars and 50 cents. The defendants proved that the plaintiff recommended the pork as good prime pork. The jury found a verdict for the defendants.
   Per Curiam.

The justice erred in admitting parol proof of the note, as a lost note, when there was no proof of its being lost. What the justice might have said as to the loss, was no legal evidence to the jury. It was requisite that proof on oath should have been given of the loss of the note, before the secondary evidence could be let in. Without examining the other points suggested, the evidence offered by the plaintiff was not sufficient to entitle him to recover, and the verdict was correct.

Judgment affirmed-  