
    Case No. 17,408.
    WELSH v. LINDO.
    [1 Cranch, C. C. 497.] 
    
    Circuit Court, District of Columbia.
    July Term, 1808
    Evidence — Pmoit Judgment — Pkomissobt Note.
    In an action against an indorser of a promissory note, a record of a judgment upon the same note between other parties cannot be given in evidence, unless the note itself be produced, and the defendant's indorsement proved.
    Assumpsit against the defendant as in-dorser of a promissory note made by Ker-chival to Lindo, who assigned it to Welsh, ‘•without recourse,” who assigned it to Hodg-sett.
    E. J. Lee, for plaintiff,
    offered no evidence but a transcript of a record of a suit between Hodgsett and Kerchival, upon the note described in the declaration, in which suit the defendant pleaded payment to Lin-do, and obtained a verdict on that issue.
    Mr. Swann objected
    That the record was not evidence in this cause, unless the plaintiff satisfied the jury, by other evidence, that the defendant assigned the note to the plaintiff. The note should be produced, and the handwriting of the defendant proved.
    E. J. Lee, contra. The note is file^l in the court of Woodford county in Kentucky, at a greater distance than one hundred miles. The plaintiff cannot have a subpoena duces tecum. He cannot obtain the note. Hodg-sett jind Welsh both claimed under Lindo. A verdict is evidence, if it concern the same point, though not between the same parties. It is the best evidence in the power of the plaintiff.
    Mr. Swann, in reply. Upon application to the court in Kentucky, it is probable they would have suffered the original note to be taken out. Nothing appears to the contrary. Until the assignment of Lindo is proved, it does not appeal- that Linde was privy to Welsh, or to either of the other parties.
    
      [On a subsequent trial a verdict was rendered for defendant. The cause was then carried by writ of error to the supreme court, where the judgment of the circuit court was affirmed. 7 Cranch (11 U. S.) 159.
    [See Case No. 17,409.]
   THE COURT

(DUCKETT, Circuit Judge, absent)

instructed tbe jury that the record is not evidence until the assignment from Lindo to the plaintiff be first proved otherwise than by the record. A juror was withdrawn by consent, and the cause continued at tbe costs of the plaintiff.  