Stretton v. Martin , 2 Va. Col. Dec. 53 ( 1753 )

Debt on Bond with Condition to pay a certain sum so soon as a Release should be procured from the owners of the Ship Prince Eugene of all their Right to said Ship and [54] delivered to John Willis Agent of the Obligor in London Deft, pleaded the Pit. did not procure such Release and deliver the same to Willis The Pit. replied that he did.

Upon Trial of the Issue joined the Pit. produced a Certificate under the hand of Willis that such Release was delivered to him which Certificate was proved to be signed by Willis.

It was objected that this was no Evidence If Willis was present in Court he must give his Evidence upon oath Therefore at least he ought to have made an Affidavit of the Truth of this Certificate and that sworn before the Lord Mayor would be good Evidence by the late Act of Parliament. But this Certificate was no more than an assertion without Oath which was never allowed as Evidence in any Court E contra. Tho’ the general Rule of Law be that every Witness must testifie upon Oath the Case here is very different Willis is appointed the Deft’s agent for a particular Purpose Now if the Defendant himself had acknowledged under his Hand to have received such Release it would certainly be good Evidence. By the Same Rule this Certificate is Evidence For Willis is in the Place of the Defendant and the Defendant is bound by his Act.

To which it was replied We must be in an unhappy Circumstance if the Certificate of our Agents in England without oath shall be Evidence of any Matter of Fact that may affect our Property. It is a Case of general Concern and no body knows whose Turn it may be next. It is true where a man appoints an Attorney or Agent for a particular Purpose he is bound by his Act. But that is not the Case. Willis here was to be purely passive to receive the Release if he he has done so no doubt we are concluded but this we say ought to be made appear by something more than a bare say so. If the Certificate be true Wills may easily make an Affidavit and there is no Reason in this Case his Word should be taken.

The Court was unanimously of opinion that this Certificate ought not to be admitted as Evidence. And so the Jury found for the Defendant. The Plaintiff tendered a Bill of Exceptions (which was sealed in Court) and appealed.