Jones v. Lovell

The following were the grounds upon which THE COURT decided the case: The only reason why those cases should not apply to this country, is. that here we may issue a commission'to examine witnesses resident abroad. But the answer to that objection is, 1st. That in this case it was not known where the subscribing witness resided; and therefore it was impossible to know where to send a commission. 2d. That upon such a commission the plaintiff could not compel the subscribing witness to testify. 3d. That the plaintiff ought not to be compelled to send his original security abroad, and run the risk of its loss. 4th. That if the defendant wished to avail himself of the evidence of the subscribing witness he might summon him or take his deposition. 5th. That the rule was a hard one, particularly with regard to negotiable paper, and the court would not extend it beyond the cases already decided. The reason why the testimony of a subscribing witness is required, is because the best evidence which the circumstances of the case-admit ought to be produced. And the reason of that rule is because the not producing such evidence, raises a presumption that if produced it would make against the party who ought to produce it. But the circumstances of this case do not admit of the production of the testimony of the subscribing witness; and they do sufficiently account for its non-production. This destroys the presumption arising from the want of that testimony, and thereby removes the ground upon which the rule was founded.