Fox v. Reil
New York Supreme Court
THIS was an action of debt, on a bond, to which there was a plea of non est factum. At the trial of the cause, at the Herkimer circuit, in June, 1808, before the Chief Justice, the plaintiff offered to prove that the bond had been shewn to the defendants, a short time before the commencement of the present suit, and that they then confessed that they had duly executed the bond ; but this evidence was objected to, and overruled by the Chief Justice.
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THIS was an action of debt, on a bond, to which there was a plea of non est factum. At the trial of the cause, at the Herkimer circuit, in June, 1808, before the Chief Justice, the plaintiff offered to prove that the bond had been shewn to the defendants, a short time before the commencement of the present suit, and that they then confessed that they had duly executed the bond ; but this evidence was objected to, and overruled by the Chief Justice. The plaintiffs, not being prepared to prove the bond, by the subscribing witnesses, or to account for their not being produced, were nonsuited.…
1Opinion of the Court
Kent, Ch. J.
delivered the opinion of the court. The question in this case is, whether proof of the acknowledgment by the defendants, out of court, and before some private person, that they had executed the bond, is good proof of its execution, upon the issue of non est factum, without producing the subscribing witness, or in any manner accounting for his absence.
The case of Hall v. Phelps has been thought to have décided this question. I do not consider it in that lights That case arose upon a promissory note, and this is upon a deed. The rules of evidence may be more safely relaxed in the…
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