
    H. B. Caston et al. v. Mary Dawson et al.
    (No. 2711.)
    November 23, 1887.
    Appeal from Rusk County.
    J. H. Turner, counsel for appellant.
    H. O. Stone, counsel for appellee.
   Opinion by

Willson, J.

§ 332. Lost note; execution of, may be proved, how; case stated. Suit by appellees against appellants upon a promissory note secured by a chattel mortgage. Judgment for* appellees. On the trial it was shown that the note sued upon was lost. The mortgage given to secure the note was read in evidence and recited a note of the same date, for the same amount, due at the same date, and payable to the same party as the note set out in the petition. Held that, prima facie, said recital proved the execution of the note set out in the petition; it being shown that the note sued upon had been correctly copied into the petition. When a lost note is the basis of an action it devolves upon the plaintiff not only to prove the loss of the note, but to prove also its execution by the defendant. [R. S. art. 1265, subd. 8; Erskine v. Wilson, 20 Tex. 78; Robinson v. Brinson, id. 438.] Several other questions are discussed and decided in this opinion, but they are not of sufficient importance to be reported.

Affirmed.  