¶1This testimony cannot be received. The defendant by being defaulted has admitted the plaintiff’s right of action, and no sufficient excuse is assigned why he cannot produce said writing; its being lost may be the effect of his own negligence and not of any inevitable accident. Besides, if he has such a writing, his proper remedy is by action upon if. See Phillips v. Halsey, New London, March Term, A. D. 1790.
1 Root 541
Branch v. Riley
Decided March 15, 1793
Supreme Court of Connecticut · decided 1793-03-15
AotioN on a note, dated 21st of April A. D. 1790, which is, “For value received in a jack ass, I promise to pay seven likely mules, four months old, by the 1st of October A. D. 1791.” The plaintiff averred said mules were worth £60, etc. Plea in bar — That at the time of executing said note the plaintiff executed to the defendant a writing', wherein he agreed, that in case said jack proved deficient in begetting of mules, he would take him back and replace another in his…
Decided 1793-03-15