
    Union Bank of Mississippi v. Ellis et al.
    Parol proof of a fact of which written evidence must exist, as of a mortgage, is inadmissible.
    from the District Court of Carroll, Curry, J.
    Browder, for the appellants.
    
      Prentiss and Finney, for the defendants.
   The judgment of. the court was pronounced by

Eustis, C. J.

This is an action against Turner R. Miller and Arm~ strong Ellis, on two promissory notes, which they signed as sureties, with Andrew Ellis as principal, for $4,000 each, in Jackson, in the State of Mississippi. There was judgment for the defendants, and the plaintiffs have appealed.

The defendant Miller admitted that he signed the notes, but alleged in his answer that the consideration for which they were given had entirely failed, The notes were payable to the Mississippi Union Bank, and were not negotiable. The plaintiffs, on the trial of the cause, objected to the admission of parol evidence offered by Miller to prove the existence of an encumbrance on the property for which the notes were given, to wit, an outstanding mortgage. As the evidence of that fact must exist in writing, we think the parol evidence ought not to have been received, Other evidence of the same sort vyas also admitted, which ought to have been excluded; and the indefinite character of the whole renders it not safe for us to determine as to the rights of the parties plaintiff, and one of the defendants, Miller, As the evidence stands, we think the genuiness of the signature of Armstrong Ellis is disproved. If it has been forged, the effect of the forgery upon the obligation of Miller, will remain to be examined hereafter.

The judgment appealed from in favor of Armstrong Ellis, is affirmed: that in favor of Miller, is reversed j and the cause so far as relates to him, remanded for a new trial; the plaintiff and Miller, each, paying one-half the posts of this appeal,  