Jones's Administrators v. Blount's Executors, 2 N.C. 272, 1 Hayw. 272 (1795)

Oct. 1795 · North Carolina Superior Court

2 N.C. 272, 1 Hayw. 272

Thomas Jones’s Administrators v. Joseph Blount’s Executors.

When the subscribing witness to a bond is dead, and his handwriting cunncr be proved, proof of the handwriting of tho obligor may be received.

Debt upon a bond for five hundred and twenty-sis pounds. The Defendant pleaded a set off, and produced two old bonds, one dated in 1760, the other in 1768, both attested ; but the witness who attested one of them, was a lady who had lived some time ago in Edenton, and was now dead; and her handwriting could not be proved by any one that the Defendant could procure.

It was objected by Mr. Hamilton for the Plaintiff, that when the handwrifing.of a deceased witness cannot be proved, it is irregular to prove the handwriting of the ob - ligar himself, that being riot essential to the deed, and not amounting to any proof of the delivery of it.

Per curiam,

Williams and Haywood

The law only, requires the best evidence the party has in his power.'— The subscribing witness must be produced when there is one; if he. be dead, proof of his handwriting may be admitted ; and if the handwriting of the witness cannot be proven, then proof of the handwriting of the obligor may be received ; this affording a strong evidence that the ob-ligor meant to make himself chargeable by that signature. And the Defendant in the present case, was permitted to prove the handwriting of the obligor.

Note. Vide note to Clements & Co. v. Eason & Wright, ante 18.