King's executors v. Bryant's executors, 3 N.C. 394, 2 Hayw. 394 (1806)

April 1806 · North Carolina Superior Court

3 N.C. 394, 2 Hayw. 394

King’s executors vs. Bryant’s executors.

'T\£BT upon a bund commenced in the county court, and a» appeal taken to this court; and the plaintiff now proposed to prove by the subscribing witness, that a bond was given to the plaintiff the time when it was given, and that it was lost at or since the trial in the county court.

rats, for the defendant, saiJ, that as a declaration had noi been drawn since the loss of the bond, and that as the first declaration made a profcrt of the bondj,; the bond so preferred to the court, must be produced in the plea of non .est Jlicinm, and proved as in common cases. Had it been lost before the declaration, it might then have been declared on as lost by time or accident; in which case, the bond need not be produced, but might bf- proved as the plaintiff now proposes.

Econtra,

it was said, that if a bond be preferred in the declaration, and whilst in the. < ffke, the seal be torn off, that it shall be proved without the seal, and notwithstanding it has none: so also should it be when not only the seal, but the whole bond is destroy, d or lost.

Taylor. Judge.

Let this point be reserved, and let the proof proposed be now made, as the plaintiff’s counsel propose to make it.

This was done,; and the defendant then proved that the ob-ligor was so drunk at the time, he could not stand, and did not know what he was about. But it was insisted that dtunkenness aione is no o’jection: the law requires the party tn have been ■drawn in to dnuk, and then imposed upon—3 P. W. 130.

Taylor, Judge. If he was so drunk at the time, that he did not know what he was about; and if in that situation he was induced to sign a paper ior a debt which he did not owe, that was a fraud; and a fraud practised upon a man whe'her drunk orsktet. will vitiate the instrument signed by him.— The jury will consider whether he was so imposed upon or not.

Verdict for the t laintiff; referred to the Supreme-court.