Ely v. Hager ( 1846 )

Rogers, J.

In support of the plea of non est factum, the defendant offered the deposition of Samuel Ely, jun., one of the co-obligors, which' was rejected by the court, and this is the only point in which there is the semblance of error. In rejecting the testimony on that plea, we think the court erred; because the objection assumes that which is the matter in issue, viz., that the instrument on which suit is brought is the joint and several bond of the obligors. But notwithstanding the mistake of the court in overruling the deposition for the reason alleged, we see no cause for reversing the judgment; for if the deposition had been received, we are of opinion, that so far from proving the non-execution of the bond by the defendant, it -would have proved directly the reverse. In answer to the question of the defendant, “Did your father sign these bonds ?” the -witness says, “I cannot say, but at that time he did not.” It seems, from the evidence, the bond was signed at different times by the obligors; and that there were four bonds. This answer would seem to imply, that at some other time he did sign the bonds. .But it does not rest on inference alone, for on the cross-examination he says, “My name is the first on all the bonds. I was acquainted with my father’s handwriting. The second name looks like my father’s handwriting.” It is true, that where there is a spark of evidence it must go to the jury; but if there is a spark here, it is an extinguished one, the evidence of which does no injury to the defendant. In truth, the deposition would be such evidence on the point of execution, if alone and unsupported, as would entitle the plaintiff to a verdict on this plea.

Judgment affirmed.