Mills v. Twist

8 Johns. 121

• Court: New York Supreme Court
• Decided: May 15, 1811
• Status: Published

Opinion

Per Curiam.

The proof that the witnesses to the written contract could not be found, was too loose to let in the secondary evidence of proof of their hand-writing. There is no case that has relaxed the rule to this length. The witnesses lived in the same county, and the party never attempted to subpoena them until the day before the court. All the proof that the party kept them out of fhe way, is, that he endeavoured to deceive the person who called, by falsely telling him they had gone on a journey. This would have been a sufficient excuse for not bringing on the trial; and might, perhaps, have been ground for a rule of this court to help the party, if the same deception should be repeated. One of the witnesses did not live with his father, and appears to have been of age, and not under his control. The cases of Cunliffe v. Lefton, (2 East, 183.) and of Crosby v. Percy, (1 Taunt. 364.) are the strongest in favour of a relaxation of the rule; and they do not, by any means, reach this case. The party is bound to show that he has made fair and diligent inquiry, and c annot procure the witness. Here was not timely and sufficient diligence used.

The attempt to prove a parol contract like the one in writing, after failing to prove the latter, was contrary to the settled rules of law, and the motion to s.et aside the nonsuit must be denied,

Motion denied.