Opinion
June Term, 1820.
The subscribing witness to a bond must be produced to prove it, upon the plea of non est factum; but the parties are not confined to his testimony, and the obligee is at liberty to give evidence also of the handwriting of the obligor, or of any other fact tending to establish that it is his bond, as his acknowledgment or the like.
DEBT on bond. Plea, non est factum. Plaintiff produced the subscribing witness, who swore that he signed the bond, as a witness, at the request of the obligor or obligee, but that he did not recollect which. He further said that he did not (50) see Laurence sign the bond, nor hear him acknowledge it, and that it was not delivered in his presence. The plaintiff then offered other witnesses to prove the handwriting of the defendant, and they were received by the court, and proved the signature to the bond to be in the handwriting of Laurence. The jury found it to be the deed of the defendant. He moved for a new trial, because improper evidence had been received, but it was refused, and he appealed to this Court. From WILKES.
The case was not argued here.
The subscribing witness has given extraordinary testimony. He swears that he signed the bond, as a witness, either at the request of Laurence or the obligee; yet he further swears that he neither saw the defendant sign the bond nor heard him acknowledge it, and denies that it was delivered in his presence. From his own admission, his attestation might have been at the request of the defendant; and if the jury so considered it, they might properly infer from it the defendant's acknowledgment of the execution.
Where there is no subscribing witness, or where the subscribing witness swears that he did not see it executed, the deed may be proved by evidence of the handwriting of the party to the bond. Ley v. Ballard, 3 Espin., 173; Fitzgerald v. Elsee, 2 Campb., 635. And in Grellier v. Neale, Peake N.P. Cases, 23, the subscribing witness had been requested to put his name to the deed by one of the parties who had signed it — so, where the person who subscribes as a witness does so without the knowledge or consent of the parties, as in McRaw v. Gentry, 3 Campb., 232. In all these cases the handwriting of the obligor, or his acknowledgment, is the best evidence the nature of the case admits of, and must be submitted to the jury. The judgment of the Superior Court must therefore be
Affirmed.
said that, after the testimony of the subscribing witness had been produced, either party is at liberty to give evidence as to the handwriting of the obligor. A bond is not absolutely proved because the subscribing witness swears to its execution, for the jury may not believe him; nor is it destroyed by his denying his handwriting or by his saying he did not see it executed. Other testimony may be given to prove that it is, or is not, the bond of the defendant, nor, indeed, are the parties confined to evidence of the obligor's handwriting, but may give any other testimony tending to establish that it is the parties' bond.
HALL, J., assented, and the motion for a new trial was refused.
Cited: Blackwell v. Lane, 20 N.C. 248; Bell v. Clark, 31 N.C. 242.