#### *Raines v. Philips’ Ex’or &c.

November, 1829.

Written Instruments — Proof—When Evidence of Party’s Handwriting Admissible.* — “Where the subscribing witness to an instrument is dead, and it is shewn to be impracticable to prove his hand writing, evidence of the hand writing of the party himself is admissible.

Bills of Exception — Uncertain—Cause Sent Back.†— Where a bill of exceptions Is uncertain, so that the true state of the case and cuestión in the court below, cannot be gathered from it. this court will for that cause reverse the judgment, and send the cause back for new trial.

Debt on bond, by Raines against Philips executor of Philips, in the circuit court of Prince George. Philips pleaded that the bond was not the deed of his testator. At the trial, the counsel for Raines proved, “that the subscribing witness to the bond was dead, and then stated to the court that every inquiry' had been made in the neighbourhood where he resided, to ascertain whether any person was acquainted with his hand Writing, but after the most diligent search, no person who knew it could be found; and then he offered testimony to prove the hand writing of the obligor: but the court decided, that under this statement, Raines could not be allowed to go into evidence of the hand writing of the supposed obligor.” To this opinion Raines excepted. Verdict and judgment for Philips. Raines appealed to this court.

The cause was argued here, by Allison for the appellant, and the Attorney General for the appellee.

They differed as to the meaning of that part of the bill of exceptions, in which it was stated, that “under this statement” the court refused to admit evidence of the hand writing of the obligor: Allison contending, that the words “under this statement,” imported that taking the statement to be true, the evidence was inadmissible : and the Attorney General insisting, that those words imported, that upon the statement made by the counsel at the bar, verified by no evidence of any kind, not even by the oath of the party, the secondary evidence was inadniissible. Stark. on Ev. *part II. $ 144, 147; Ben v. Peete, 2 Rand. 539; Gilliam’s adm’r v. Perkinson’s adm’r, 4 Rand. 325, were cited at the bar.

*

Written Instrument —Proof—When Evidence of Par* ty’s Handwriting Admissible. — it. is a general rule that the evidence of a subscribing witness to an instrument, is the best, and must be adduced, if it can be had; and if it cannot, proof of the handwriting will be required; but. if the subscribing witness merely makes his mark, if he is dead, proof of the handwriting of the party execnting the instrument, will be proper. Gilliam v. Perkinson, 4 Rand. 325. See monographic *notes*on “Wills,” and "Evidence” appended to Lee v. Tapscott, 3 Wash. 376.

†

Bilis of Exception — Certainty.—Whenever a bill of exceptions to an instruction of the court to a jury, is so vague and imperfect, that the appellate court cannot ascertain the exact state of the case, nor consequently the import and effect of the instruction, it is a settled practice, to reverse the judgment, to set aside the verdict, and remand the cause Cor a new trial, Bowyer v. Chestnut, 4 Leigh 4, citing *Raines v. Philips,*1 *Leigh*483; Thompson v. Cumming, 2 Leigh 321.

In McDowell v. Crawford, 11 Graft. 398. it is said by Monourb, J.: “Th at when an opinion of an inferior court admitting or excluding evidence, or giving or refnsing an instruction, is excepted to, the court must take care so to state the case in the bill of exceptions as that the appellate court may supervise the opinion. and determine whether it is right or wrong; otherwise, the judgment must be reversed in order that the case may be correctly stated. Therefore, the judgment must always be reversed where the bill of exceptions to an opinion of the court, admitting or excluding evidence, is defective in not setting out the evidence admitted or excluded. The cases of Fowler v. Lee, 4 Munf. 373: Hairston v. Cole, 1 Rand. 461; *Raines v. Philips, 1 Leigh*483; Bowyer v. Chestnut, 4 Leigh 1, are cases in which exceptions were taken to the admission or exclusion of evidence. Barrett v. Tazewell. 1 Call 315; Beattie v. Tabb, 2 Munf. 254; Brooke v. Young, 3 Rand. 106, are cases in which exceptions were taken to instructions given or refused by the court. In all these cases the judgments were reversed on the ground that the statement of facts in the bill of exceptions was too imperfect to enable the appellate court to determine the question." See mono-graphic *note*on “Bills of Exception” appended to Stoneman v. Com., 25 Gratt. 887.

BROOKE, P.,

delivered the resolution of the court. It is now the settled rule, where the witness to an instrument is dead, and it is impracticable, after all possible diligence has been used, to prove his hand writing, to admit proof of the hand writing of the party himself. (See Gilliam’s adm’r v. Perkinson’s adm’r and the cases there cited.) But upon this bill of exceptions, it is difficult to say on what ground the evidence was rejected by the court. There is a great want of precision in its language. The judge said, that under the statement *172made by the counsel for Raines (who, it seems, had proved, that the witness was dead) he could not be allowed to go into evidence to prove the hand writing of the supposed obligor. If we are to understand, that he admitted the truth of the statement, if it is to be inferred, from the circumstance that the counsel had proved the death of the witness (it is to be presumed on oath), that he made the statement in question, in like manner (that is, on oath) ; then the judge might be understood as denying the rule before stated. On the contrary, if the fact was, that it was a mere statement not on oath, his objection was, that the facts necessary to entitle the plaintiff to go into evidence of the hand writing of the obligor, were not proved. But, whether he considered the statement as proved, and denied the rule, or admitted the rule, and objected to the statement because it was not proved, is so doubtful, that we think the safest course will be to reverse the judgment, as the court has often done for uncertainty in a bill of exceptions, and send the cause back for a new trial, in which, if the question again occurs, the objection to the admission of proof of the hand writing of the obligor, may be more precisely stated.

Judgment reversed. •