Savage v. D'Wolf

NELSON, Circuit Justice. There is some difference of opinion between the judges, upon the question whether the agreement under which the notes were given was properly admitted in evidence, on proof of the hand-writing of the parties and of the admission made by the plaintiff, without further accounting for the subscribing witnesses. The paper having been executed abroad, the presumption of law was, undoubtedly, that the witnesses were beyond the jurisdiction of the court. But their hand-writing was not proved, nor was the omission to do so properly accounted for. Proof of the admission by a party of the execution of negotiable paper, or proof of his hand-writing, without producing or accounting for the subscribing witness, has, in New-York. been held sufficient. Hall v. Phelps, 2 Johns. 451; Fox v. Reil. 3 Johns. 477; Shaver v. Ehle, 16 Johns. 201; Henry v. Bishop. 2 Wend. 575. But, whether this [548] rule extends to all unsealed instruments, may admit of some doubt. Upon another ground, however, the verdict should be set aside, and a new trial granted. There is some obscurity in the case in respect to the facts connected with the admission in evidence of what was claimed to be the release or discharge tendered to the defendant’s testator. But, it is at least questionable, whether the instrument produced and identified at the trial was the original, or only a copy with the endorsement of the fact of the tender. It may be, and probably is, the fact, as stated by the plaintiff’s counsel, that the witness made the endorsement upon a copy as well as upon the original paper tendered, and that it was the copy that was produced and admitted in evidence. The belief that the paper produced was the original seems to have been rather an inference of the court from there being on it the endorsement in the hand-writing of the witness to the tender, than the result of any direct proof of the fact. The conclusion, however, seems hardly to have been warranted. It is quite apparent that both parties entered upon the trial without proper preparation. All the material facts were capable of the. most satisfactory proof. The execution of a commission to take testimony in Cuba, where the contract was made and the witnesses resided, and where, if at all, the condition was complied with before the delivery of the notes to the plaintiff, would have removed every embarrassment. This course should be taken before the cause is again presented to the court. New trial granted.