Lesher's Lessee v. Levan

2 U.S. 96

Opinion

Rush, Justice:

—I differ in opinion from the rest of the Court. I think that before the instrument is read, sealing and delivering should be proved. If, indeed, the witnesses were proved to be dead, or absent beyond the reach of the process of the Court, the proof of their hand-writing would, be admitted ; or, if that was not practicable, proof of the hand-writing of the obligor might be satisfactory. But these circumstances do not occur on the present occasion ; and as far as the testimony of Longsdorff goes, it is calculated to induce a belief that there was, in fact, no sealing and delivery of the instrument. It is not, therefore, proved as a deed ; and, in my opinion, it ought not to be left to the Jury as a memorandum.

A bill of exceptions was taken to the opinion of the Court, but never prosecuted.