
    Betts against Badger.
    duted^by^a p;>rty at a trial> pursuant tti 'a»°ucRtoiiim, site"1 p¿rtyPP¡s be™a£en“tó be an'j may'^be Hence withoHÍt" £™°ion!its cx'
    IN ERROR from the court of common pleas of Chenango county. Badger brought an action in the court below asainst m, ./vi , ° Betts. The plaintiff declared on a certain note or instrument in writing, dated the 28th of Mag, 1808, by which the defendant, for value received, promised to pay to the plaintiff, fifty dollars, on or before the 1st of May, 1810, in good napped hats, to be delivered to the defendant; which note or instrumerit in writing was subject to a condition thereunder written, to the following effect; that if the defendant should not procure a deed from M. Lewis, of the farm on which the plaintiff lived at the time of the execution of the note, or instrument in writing, on account of objections of Leivis, then, and in that case, the said note or instrument in writing was to be null and void ; but should the said M. Lewis comply, then the said note was to remain valid, and the hats valued at three dollars each. The plaintiff averred that the defendant did procure from M. Lewis, a deed of the farm, &c.; yet the defendant, though often requested, &c. had not paid, See. The declaration also contained the usual money counts, and the defendant pleaded the general issue, with notice of special matter to be given in evidence. At the trial, the deed of Lewis was produced by the defendant, pursuant to a notice given to him for that purpose, by the-plaintiff; and the counsel for the plaintiff offered to read it in evidence, without any proof, by the subscribing witness, of its execution. The plaintiff’s counsel objected, insisting that it could not be read in evidence, without calling to the subscribing witness to prove it, or making legal proof of its execution. The judges of the court below were divided in opinion, upon the question; and the deed was read in evidence, without any .proof 'of its execution. The jury gave a verdict for the plaintiff, for sixty-four dollars and twenty-five cents. The defendant’s counsel tendered a bill of exceptions, on which a writ of error was brought to this court.
    
      Vanderpeol, for the plaintiff in error.
    The deed, though produced by the plaintiff, under a notice for that purpose, ought to have been proved, as in other cases. It is true that the. court of K. B. in England, in the case of the King v. Inhabitants of Middlesoy,
      
       decided that a deed produced by the opposite party, under a notice, though no party to it, was primafacie evidence, without any proof of its execution; but that case was afterwards doubted by Lord Kenyon, and finally overruled by the court, in Gordon v. Secretan,
      
       and the rule laid down, that the production of a deed at the trial, pursuant to a notice, did not dispense with the necessity of proving it by one of the subscribing witnesses, as in ordinary cases. In Fox v. Reel, this court decided, that where there was a subscribng witness' to a bond, proof of the confession of the obligor of the execution of the bond, was not sufficient without producing the subsoribing witness, or, in case cf his death, pro~ing his hand Writing.
    H. Blecker, contra.
    This is all exceptioi~ to the opinion or the court below; yet the bill of exceptions states that the judges were equally divided in opinion: so that there was no decision, which was, in effect, denying the motion for the deed to he read. [T~oi~i~sbi~, Ch. .1. But. as the deed was, in fact, read in evidence, we must presume that it was read with the assent of the court.]
    But admitting that it was read with the direction or asse~it of the court below, there can be no doubt that it was prima facie evidence, without further proof. it was so decided in the case. of the King v. Middlezoy, and by Lord Mansfield, in Passel v. Godsall, cited in that case. And this rule was expressly recognised by Bulier, L, in the case of Bowles v. Langworthy, arid by Lord Kenyon in Doxon v. Haigh. It is true that Lord Ellen-borough, in the case of Gordon v. Secretan,~ reprobated and de. nied this doctrine, and that is tI~e only case in which the rule has been denied.
    Thereis no danger in this rule; and it is far more convenient than the one requiring strict proof, as in ordinary cases. The deed so produced is only prima facie evidence; and may be repelled, if the party thinks proper, by evidence of fraud or forgery. But if a plaintiff who calls for a paper essential to the support of his case, is bound to ptoduce the subscribing witnesses, when it is produced at the trial, he may be taken by surprise, and non-suj~ted, from not knowing the witnesses, o~ where they may be found. 
    
    
      
      
         2 Term. Rep. 41.
    
    
      
      
        Peake's Evidence, 111. (109) 112.
    
    
      
      
        P. East, 548.
    
    
      
       8 Johns. Rep. 477.
    
    
      
       5 Term. Rep. 366.
    
    
      
       1 Esp. Rep. 409.
    
    
      
       Campbell, in a note to Wetherston v. Edgington, (2 Camp. N. P. Rep. 94.) thinks this difficulty, which seems lo be the principal objection to the rule as established by the court of K. B. in Gordon v. Secretan, might he easily obviated, by obtaining a rule of court, or a judge’s order, to inspect tile instrument before the trial.
    
   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.
     