Brigham v. Palmer
Massachusetts Supreme Judicial Court
Contract .for a wagon sold and delivered. At the trial in the superior court, the plaintiff, in support of his title to the wagon, relied on three mortgages of 'personal property to him from James McKernell, all of which were attested by a witness who was admitted to be in a neighboring town and competent.
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Contract .for a wagon sold and delivered. At the trial in the superior court, the plaintiff, in support of his title to the wagon, relied on three mortgages of 'personal property to him from James McKernell, all of which were attested by a witness who was admitted to be in a neighboring town and competent. The defendant objected to proof of the mortgages except by the attesting witness; but Rockwell, J. overruled the objection, and allowed the mortgagor to testify to their execution. The plaintiff introduced evidence tending to show that he authorized the mortgagor to sell the wagon for him…
1Opinion of the CourtHoar, J.
We think the defendant’s exceptions upon two points are well taken, and that he is entitled to a new trial.
1. The rule that the execution of an instrument which is offered in evidence by one who is a party to it cannot be proved without calling the attesting witnesses, where they are living competent and within reach of the process of the court, is a fundamental rule of evidence in this commonwealth, long ago established, and strictly adhered to. Whitaker v. Salisbury, 15 Pick. 534. Homer v. Wallis, 11 Mass. 309.
In The King v. Harringworth, 4 M. & S. 354, Lord Ellen borough said that this…
2Cases cited6 opinions
- Homer v. WallisMassachusetts Supreme Judicial Court · 1814
- Shaver v. EhleNew York Supreme Court · 1819
- Henry & Emott v. BishopNew York Supreme Court · 1829
- Hall v. PhelpsNew York Supreme Court · 1807
- Harlan v. PeopleMichigan Supreme Court · 1843
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