This case is in a very uncertain, unsatisfactory condition. It is difficult to say that anything was clearly proved on the trial. The plaintiff, suing for the conversion of a note, by the very terms of his complaint placed the note in the defendant’s possession ; and so he, the plaintiff, was not bound to produce it in evidence, but could prove its tenor by any witness who could testify to it, not being confined to the subscribing witness. Yet, in the course of the trial it is made perfectly plain that the attorney for the plaintiff must have had the note, and could have produced it; and the justice ought to have made him do so. Still, I do not see that therein there is ground for reversing the judgment; nor do I see any fatal error in the rulings as to admitting or rejecting evidence.
I see no clear proof of any payments having been actually made on this note, except the $40 and the $25 or $30. Nor is there plain proof that any other sum, paid by Lampman to Smith, was so paid that the law would apply it on this note. Whatever there is of the case, seems to consist more of questions of fact than of questions of law; and in the state of the evidence I do not see now we can reverse the judgment, though I am far from satisfied that justice has ■been done. One thing is sure—that the recovery in this action gives the defendant Hoose full title to this note, and he can have it and cancel it. This is upon the supposition that the plaintiff really owned the note at the time the suit *405was brought. Of this, I confess I have some doubt, as there is absolutely no proof that he did ; and except that the trial seems to have proceeded on the basis that he did, unless it were paid, I should for that failure of proof reverse the jugdment.
Judgment of county court affirmed.