Call, Bart. against Dunning
| Jurisdiction | England & Wales |
| Judgment Date | 14 June 1803 |
| Date | 14 June 1803 |
| Court | Court of the King's Bench |
English Reports Citation: 102 E.R. 750
IN THE COURT OF KING'S BENCH.
gall, bart, against dunning. Tuesday, June 14th, 1803. The answer of the obligor of a bond to a bill filed for a discovery, in which he admitted the bond to have been executed by him, is only secondary evidence, and cannot be received as evidence per se of the execution, without shewing that due diligence had been used to discover who the subscribing witness was, who was alleged to be unknown. * ' , In debt on bond, at the trial before Lord Ellenborough C.J., at the sittings after last term, the only proof offered of the execution of the bond was the answer of the defendant in Chancery to a bill filed for a discovery, whether this were his bond ? in which answer it was admitted to be so. But the bond, when produced, having the name " Eiehard Wilson " subscribed thereto as the witness attesting the execution, and no evidence being given of his hand-writing, or that any inquiry had been made who the person was, or where he was to be found, or that any application had been made to any person of that name to know whether he were the subscribing witness; (though it was suggested on the part of the plaintiff that no knowledge of the witness could be obtained by him;) the Lord Chief Justice thought that no sufficient foundation had been laid to let in the secondary evidence offered, and therefore nonsuited the plaintiff. Gibbs moved to set aside the nonsuit, on the ground that this was distinguished from all the prior cases where evidence of the defendant's admission that ,it was his bond, without calling the subscribing witness or proving his hand-writing if dead, had been rejected : for in those cases the parties might have made such admission by surprize. And the Courts have .always considered the evi-[54]-dence of the subscribing witness material, if it can be obtained, in order that a defendant may have the advantage of a disclosure being made of all the circumstances attending the execution of the instrument at the time. But here the defendant himself had the opportunity of stating, together with the acknowledgment of his handwriting...
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