Opinion
(March, 1798.)
When the subscribing witness to a bond resides in another state, his handwriting may be proved.
DEBT upon a bond executed in Maryland, which had two attesting witnesses, one of whom was dead, the other alive but residing in Maryland, and his deposition had not been taken.
Badger for plaintiff. (28)
Martin, e contra.
Proof of the handwriting of a merchant's clerk, while he is alive, is not admissible, because of the great opening to fraud that it would make. A merchant might charge to any man in his books the delivery of articles to any amount, and cause the entries to be made by a clerk about to remove to another state beyond the reach of process from our courts, and after his removal recover upon proof of his handwriting. In the case of an instrumentary witness, his name appearing in his own handwriting is some evidence that he was required to attest for the purpose of proving it in case of a dispute; and when this evidence is corroborated by proof also of the obligor's handwriting, it amounts to strong proof of the bond. Here, there is not so much reason for caution as in the other case. A deposition is not required, because it might be very expensive and troublesome to obtain it, and the obligor's handwriting ousts the probability of a contrivance between the obligee and witness; but proof of the witness's handwriting is required, because, if not made, the plaintiff would not give the best evidence in his power, and thereby raises a suspicion that the witness did not attest. Where there is no attesting witness the handwriting of the obligor might under some circumstances be proof enough; but that case is not liable to the objection of the plaintiff not making all the proof in his power.
Badger then proved the defendant's admission of the bond, and praying an injunction against this action by producing the bill in equity that he had filed, and the plaintiff had a verdict.
NOTE. — Tullock v. Nichols,1 N.C. and the note thereto.