Davison's Lessee v. Bloomer

APRIL TERM, 1785. Davison’s Lessee v. Bloomer. Evidence. Where there are two subscribing witnesses to a deed, one of whom becomes afterwards interested, his handwriting cannot be proved, if the other witness resides within the county. A Deed, attested by two witnesses, one of whom had married the lessor of the plaintiff, the other residing within the county and not produced, was offered in evidence, upon proof of the handwriting of the witnesses. Hartly objected, that it would be better evidence to prove the execution of the deed by the absent witness, not interested ; and therefore, this ought not to be allowed. Yeates contended, that if a witness is incapacitated, either by his own act, or by the act of God, proof of the handwriting is sufficient; as, where a witness has been convicted of perjury. [MAJORITY — By the Court.] By the Court. There is a case in Strange where a party who was a witness to a bond afterwards became interested, and, although the proof of his handwriting was admitted, yet there must, likewise, have been proof that the other witness could not be found, The best evidence of which the case reasonably admits has not been offered ; and therefore, we cannot allow the deed to be read on this occasion, The case alluded to is, probably, Godfrey v. Norris, 1 Str. 34, where the plaintiff, who was administrator of the obligee, was the only subscribing witness to the bond, and the court permitted his handwriting to be proved. Proof of the handwriting of a witness, who has become interested since the subscription, will be admitted, although the interest has arisen by his voluntary act. Hamilton v. Marsden, 6 Binn. 45; Lautermilch v. Kneagy, 3 S. & R. 202.