Gordon and Others against Secretan
| Jurisdiction | England & Wales |
| Judgment Date | 15 June 1807 |
| Date | 15 June 1807 |
| Court | Court of the King's Bench |
English Reports Citation: 103 E.R. 453
IN THE COURT OF KING'S BENCH.
[548] gokdon AND others against secretan (a)2. Monday, June 15th, 1807. Where an instrument is produced at the trial by one of the parties, in consequence of notice from the other; which when produced appeared to have been executed by the party producing it and third persons, and to be attested by a subscribing witness,; the production of it in that manner does not dispense with the necessity of proving the instrument by means of the subscribing witness, though unknown before to the party calling for it. In an action Upon a policy of insurance on goods on board the ship " Tom," at and from the Southern Whale Fishery until her arrival at London, the declaration contained an averment that the plaintiffs were interested in the subject-matter of insurance; and the defendant meaning to dispute that at the trial, gave them notice to produce certain articles of agreement between them (who were also owners of the ship) and the captain, whereby, as he contended, it would appear that the captain, (who was not a plaintiff) was interested in one third of the neat proceeds of the cargo : and if so, the defendant, having paid more than enough into Court to cover the shares of these plaintiffs, would have been entitled to a verdict, unless the plaintiffs were entitled to recover the remainder of the sum insured as trustees for the captain; which would depend upon the construction of the articles. In pursuance of the notice the instrument was accordingly produced at the trial by the plaintiffs, when there appeared to be two subscribing witnesses to it; and therefore the plaintiffs insisted that the defendant could not give it in evidence without calling one of those witnesses to prove it. And Lord Ellenborough being of that opinion, the plaintiffs recovered. The Attorney-General moved at the beginning of the term for a new trial, 1st, on the ground that the instru-[549]-ment coming out of the hands of the plaintiffs, parties thereto, upon notice to produce it, was not necessary to be proved by one of the subscribing witnesses, according to the rule laid down in Rex v. Middlezoy (a)3. If the deed had been read, the other question would have arisen upon the terms of it: and on this he contended, that though the legal interest of the whole cargo might be in the plaintiffs, the ship owners; yet they having agreed, as' he contended, to pay one-third of the neat...
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