Opinion
November 1807.
The fact that a subscribing witness resides beyond the reach of the process of the Court, if he be in another State of the Union, is not sufficient to let in secondary evidence. [Acc. Shepherd v. Goss, infra, 487. But these cases are overruled by Stump v. Hughes, 5 Hay. 93. And see McDonald v. McDonald, 5 Y. 307; Crockett v. Crockett, Meigs. 95; Harrel v. Ward, 2 Sn. 610.]
BARRY, for plaintiff, stated that Bush had been subpœnaed, that he told the counsel he would not attend, that he had absconded, and was now in the State of Ohio; he therefore moved that proof of Payton's handwriting might be received.
WHITE, for the defendant, objected, not only upon the ground that the evidence could not be received, by the Court, but if it could the second count could not be supported by the order produced, which was directed to David instead of William Love, and for this he cited 2 Esp. 132; 3 East, 207; 2 Esp. 537.
Case. — The second count stated an order drawn by the defendant on William Love, the plaintiff, in favor of Abner Bush, for a horse, stating that he would be security for the payment of the horse. An order was produced directed to David Love, upon which William Love, the plaintiff, delivered the horse to Bush.
Evidence of the handwriting cannot be received; Bush's testimony would be the best evidence; this is admitted at the bar. By the English practice, if a witness be beyond the reach of the process of the: court, secondary evidence may be received. This has not been our practice, where the evidence, of a witness is known to be in another State, his deposition ought to be taken. It is admitted that Bush is in Ohio, and the circumstance of his telling the counsel that he would not attend cannot alter the case.
See 2 East, 250; 4 Johns. 461.
Nonsuit.