Betts v. Badger , 12 Johns. 223 ( 1815 )

Spencer, J.,

delivered the opinion of the court. The question presented by the bill of exceptions -is, whether a deed in the possession of one of the parties, and produced by him at the trial, upon notice given, and at the requisition of the other party, can be read in evidence by the party thus calling for its production, wtihout proof ~f its execution ; there being a subS scribing witness to the execution.

The bill does not state, nor can it he collected9 with certainty, from the note declared on, whether the deed was given to Bett~ ~r ~ac~gcr, or some other person. I think, however, it may be inferred from several cireum~tances, that the deed was given by Lewis to the plantlif in error: 1st. Because he had possession ~f ~t; and 2d, l?rom the condition of the note; that if the plantiff in error did not produce a deed from Lewis foi the farm, on which the defendant lived, then the note was to be ~uli and void; if he did, then be was to pay the note. ThIs imports that he was t~ gain an aAvantage and ~o derive a benefit from the deed.

In Passell v. Godsall, (cited in 2 T. R. 44.) the plaintiff had given the defendant notice to produce an agreement at the trial. It was produced, and the objection was taken that it could pot be read without proof. Lord Mansfield overuled the objection, saying, the defendant produced it as the original agreement, and therefore it need not be proved. Lord Mansfield expressed the s<une opinion in Thompson v. Jones, (also cited in 2 T. R. 44.) In the case of the King v. The Inhabitants of Middlezoy (2 T. R. 44.) Ashurst, Buller, and Grose, Justices, .all agreed that an instrument produced by one party, at the call of the other, must be presumed, prima facie, to be duly executed. In Doxon v. Haigh et al. (1 Esp. Rep. 409,) Lord Kenyon. expressed the same opinion ; and Peake, in his treatise on evidence, considers that to be the rule, when the deed is given to the party who produces it; but when it is matter inter alios acta, and the party called on to produce it, is not a party to the instrument, he expresses doubts yyhether it be not necessary tp> prove it.' In Gordon and others v. Secretan, (8 East,) Lord Ellenborough lie Id that it was necessary, >yhen there was a subscribing witness, for the party to prove the execution, although the instrument was produced by the other party, apd although purporting to be executed by him ; and Lawrence, J., in the game case, said it had been go ruled by Lord Kenyon, in the case of a will. But in a subsequent case,^* (2 Camp. Rep. 94.) Heath, J., declared he thought the old rule the sensible one. that an instrument coming from the opposite side was, prima facie, to be taken as duly executed,

These aré believed to be all' the 1 cases on the Subject, I apprehend the practice, at nisi prius, with x us, has been in Conformity with what Mr. J¡ Heath calls the old rule; if the party producing an instrument, is one of the parties to" it, the custody of the paper affords high presumptive evidence, that he holds it as a muniment; and, prima facie, it is sufficient proof of the execution. ',

Judgment affirmed.

* Wetherston v. Edgington.