Fleming v. Reynolds

The vouching or attestation mentioned in the statute, hath reference not to the time of the action upon the note or bond, but to that of the execution, and is descriptive of the manner and circumstances of the execution; and much evidence arises of the authenticity of a note or bond, and the fairness of obtaining it, from the known signature of two persons attesting the same, who are disinterested at the time of attestation, though neither should be alive, or present, or admissible to testify at the time of trial.— Wherefore, an appeal in this case was rightfully denied.

dissenting. From the reason of the law respecting appeals, I think an appeal ought to have been allowed in this case. The statute has taken away the right of appeal in actions brought on bond or note, given for the payment of money only, and vouched by two witnesses. It is because of the certainty, clearness, and simplicity of the contract, and from the circumstances of it the most free *390from perplexity and dispute. Tbe obligation being for money only, wbicb bas a fixed and determinate value; and there being two disinterested witnesses, tbat may be called ■upon at tbe trial, to avoncb or testify to tbe written contract, as entered into freely, without compulsion or fraud. This being tbe supposed state of tbe case, to allow an appeal of a cause so indisputable, would create an unreasonable delay of justice.— On this ground, tbe reason of tbe statute ceases, when payment is plead; for tbe subscribing witnesses to tbe execution are, by such plea, put out of tbe question. And so when usury, or duress, is made tbe defense, from wbicb tbe most nice questions in law often arise, tbe reason of tbe case seems to require tbat an appeal should be allowed; and tbe statute should receive such a construction as will tend most to suppress tbe mischief and extend tbe remedy. If there is any good sense or reason in tbe word vouched, as used in tbe statute, it must mean something more than tbat tbe names of two persons should be subscribed to tbe bond; for if such subscribing persons be not legal or admissible witnesses, it. is to every legal purpose, as if there was no witness.— When is tbe time tbat such subscribing witnesses become necessary to tbe parties? It is when tbe transaction, to wbicb they have subscribed, is drawn into controversy; and not till then is their attestation needed.— Hence it may be fairly inferred, tbat tbe statute does not regard tbe time of execution merely, but tbe time of trial.