Wheeler v. Miller
New York Supreme Court
Covenant upon a guaranty under seal, executed by the defendant acid annexed to articles of agreement between the plaintiff and one T. L. The declaration does not contain any ;proferí, but has the following as a substitute: “ which said * guaranty and agreement of the said defendant, sealed with the seal of the said defendant, the date whereof is, &c. was then and there delivered with the said agreement so as aforesaid made and executed between the said plaintiff and the said…
Read the full summary
Covenant upon a guaranty under seal, executed by the defendant acid annexed to articles of agreement between the plaintiff and one T. L. The declaration does not contain any ;proferí, but has the following as a substitute: “ which said * guaranty and agreement of the said defendant, sealed with the seal of the said defendant, the date whereof is, &c. was then and there delivered with the said agreement so as aforesaid made and executed between the said plaintiff and the said T. L. into the custody, care and possession of T. Burroughs for the benefit of the said parties thereto, and which said…
1Opinion of the Court
By the Court, Bronson, Ch. J.
The excuse of the pleader for not making proferí of the deeds on which the action is founded is, that they were at the time of making them delivered into the possession of one Burroughs for the benefit of the parties. That is not enough. It should have been alleged, at the least, that the deeds still remained in the hands of Burroughs, and that the plaintiff could not produce them to the court. It is a good excuse for not making proferí that the deed has been destroyed, or is in the hands of the opposite party, so that the party pleading the deed cannot produce…
2Cited by4 opinions
- Stoddard v. DenisonThe Superior Court of New York City · 1869
- Jones v. AdamsOregon Supreme Court · 1900
- Talbot v. De ForestSupreme Court of Iowa · 1852
- The J. B. LuntDistrict Court, S.D. New York · 1853