Opinion
(April Term, 1806.)
1. If a plaintiff, after a trial in the county court and an appeal to the Superior Court, lose the bond declared on, he may prove its contents without amending his declaration.
2. If one is so drunk that he does not know what he is about, and in that situation is induced to sign a paper for a debt which he did not owe, it is a fraud; and a fraud practiced upon a man, whether drunk or sober, will vitiate the instrument signed by him.
DEBT upon a bond commenced in the county court, and an appeal taken to his 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.
Fitts, for the defendant, said that as the declaration had not been drawn since the loss of the bond, and that as the first declaration made a profert of the bond, the bond so referred to the court must be produced in the plea of non est factum, 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 be proved as the plaintiff now proposes.
E contra, it was said that if a bond be proffered in the declaration, and whilst in the office 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 destroyed or lost.
Let this point be reserved, and let the proof proposed be now made as plaintiff's counsel propose to make it.
This was done; and the defendant then proved that the obligor was so drunk at the time he could not stand, and did not know what he was about. But it was insisted that drunkenness alone is no objection; the law requires the party to have been drawn in to drink, and then imposed upon. 3 P. W., 130.
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 for a debt which he did not owe, that was a fraud; and a fraud practiced upon a man, whether drunk or sober, will vitiate the instrument signed by him. The jury will consider whether he was so imposed upon or not.
Verdict for plaintiff; referred to the Supreme Court.
NOTE. — See, upon the first point, the same case in the Supreme Court, where it was affirmed, 5 N.C. 131. Upon the second point, Perry v. Fleming, 4 N.C. 344; Logan v. Simmons, 18 N.C. 13; Gibson v. Partee, 19 N.C. 530.
Cited: Cameron v. Power Co., 138 N.C. 368.