Note — Vide Swire v. Bell, 5 Term, Rep. 371. — Note to Clements and Co. v. Eason & Wright, ante 18.
Nelius v. Brirkell's Administrators, 2 N.C. 25, 1 Hayw. 25 (1792)
Oct. 1792
·
North Carolina Superior Court
2 N.C. 25, 1 Hayw. 25
HALIFAX,
OCTOBER TERM, 1792.
Nelius v. Brirkell's Administrators.
Proof of the hand-writing; of the wife of obligor is not admissible. — » The mark of a subscribing witness, who is dead, may be proved to let in testimony of the obligor’s hand-writing.
Debt on a bond, and general issue pleaded. The bond was attested by N ancy Brickell, the wife of the obligor, *26(,y person who made his mark. The Plaintiff’s attorney would have proven the hand-writing of Nancy Brickell, relying on the case in Stra. p. 14, where a witness to a bond having become the administrator of the obligee, proof of his hand-writing was admitted.— Sed per curiam, in that case the. witness was competent at the time of his attestation, and having become disqualified whilst living, by being a party to the suit, his hand-writing was the l^est proof which could reasonably be expected; but ^-e the witness was incompetent from the beginning, ant™she could not be admitted asa witness, much less ought her hand-writing to be received as evidence ; but the Court said, if you can prove there was once such a man as that who has made his mark, and that he is now dead, or not to be found, and also that lie used to make his mark in the manner that it appears to be made to this bond, it will be such a presumption as will let you into the further proof of the band-writing of the obligors, like the case in Douglass, p. 93, of Coghlan v. Williamson. Whereupon the Plaintiff’s attorney proved (here was such a man, who was alive about the time of the date of the bond, in the neighborhood where it was given, and that be was dead ; and that he used to make his mark as it appeared upon the bond 5 and that the name of the obligor was in the obli-gor’s hand-writing : and be had a verdict and judgment for the Plaintiff.