
    LICKING COUNTY,
    SEPTEMBER TERM, 1833.
    JUDGES-WRIGI-IT AND WOOD.
    TAYLOR’S ADMINISTRATOR v. COLVIN.
    Proof of contents of a lost note — evidence under non est factum without affidavit.
    Before proof is admissible of the contents of a note, the foundation of the suit, the party must satisfy the court the note is lost.
    On non est factum without affidavit, the defendant is not permitted to contest the due execution of the note — the plea without affidavit gives the plaintiff no notice to. meet such proof.
    But in such case leave will be given to annex an affidavit, on paying costs and proceeding with the trial.
    An heir of the plaintiff’s intestate, who has conveyed his interest in the estate unconditionally for the purpose of becoming a witness is competent, as the motive affects only his credit.
    Debt on a note under seal. Plea, non est factum.
    On trial the plaintiff offered evidence of the contents of the note without producing it.
    
      Mathiot, for the defendant, objected, that there was no proof of its loss.
    450] *Evidence was then given that the note had been attached to a deposition proving its execution, and filed with it in the clerk’s office; that it has been detached from the deposition, and after diligent search can nowhere be found.
    
      8. W. Gulbertson, for the defendant, stated his defence.
   BY THE COURT.

You can now prove the contents of the note.

Culbertson then asked leave to amend by filing an affidavit instanter.

Taylor, the subscribing witness of the note,

and one of the heirs of the intestate, was then called; but being questioned as to his interest in the event of the suit, said he had sold out his interest in the estate to his sister, in order that he might be a witness, but that the sale was absolute.

Culbertson objected to his competency.

WOOD, J. Under our law you cannot give evidence in the present state of pleadings, to show that the note was not duly executed. Non est factum, without affidavit of its truth, is no notice to the plaintiff to prepare for such a defence.

WOOD, J. Leave will be granted on paying costs, and proceeding with the trial, or continuing at the plaintiff’s option.

The affidavit was then filed, and the plaintiff elected to proceed with the trial.

WOOD, J. The witness is competent — he has no interest in the event of the suit. The motive which induced him to divest himself of his interest, if given to the jury, may affect his credit, but it does not touch his competency, inasmuch as the transfer is unconditional.  