#### Selby *v*. Clark.

From Beaufort.

Proof of the hand-writing of a subscribing witness, under a *temporary*absence of the witness without a change of domicile, shall not be received, for it might lead to great abuses : but where a witness leaves the State in the exercise of a public duty (as in the case of a member of Congress) all presumption of collusion is repelled, and his hand-writing may be proved.

This was an action of Trespass ojn the Case, tried below, before Ruffin Judge. On the trial, it became material for the Plaintiff to give in evidence a bill of sale for a slave, to which *Richard*Hines, Esq. was the subscribing witness ,• it had been heretofore proved and registered upon the testimony of the subscribing witness.

*Mr. Hines*had been elected a representative of the . district to which Beaufort County belongs, and at the time of trial, was at Washington attending his public duties as a member of Congress ; but was not there, with, any intention of changing his domicile from this State.

The suit had been pending for several years, but *Mr. Hines*had never been summoned as a witness in it, nor *266bad any attempt been made by the Plaintiff to obtain bis deposition.'

Tlie Plaintiff offered to prove bis hand-writing, and on such proof claimed to read the bill of sale ; but (lie Court refused to allow it, and a verdict was given for the Defendant. — The Plaintiff moved for a new trial, because the evidence was not received, and the Court (by consent of parlies, and in order that the rule of evidence might be settled) overruled the motion, and gave judgment for the Defendant: whereupon, there was an appeal to this Court.

*Badger,*for the appellant. —

The presence of a subscribing witness is required, merely to rebut the *presumption*which arises from his non-production, that the party is *afraid*to produce him $ hence, when it is made apparent that the true reason of his non-production, is not the fear of his testimony, secondary evidence will be received.— It is certain, that the hand writing of a subscribing witness, who has *permanently*removed, may be received: now we affirm, that whether the removal be permanent or temporary, is of no *moment;*that the true enquiry is, whether at the time of trial, the witness is absent beyond the jurisdiction of the Court, out of the read) of its process ; if he he, secondary evidence, is admissible.

Thus, in the case of *Prince*v. *Blackburn*(2 *East,*250) the subscribing witness to a deed was abroad, at the time of trial, the Court held, “ that as the witness was out of the jurisdiction of the Court, so as not to he amenable to its process,” evidence of his hand-writing was proper. The case leaves it uncertain whether the absence of the witness was temporary or permanent, but the Court seems to have considered it unimportant, for they take no notice of any distinction between absence for a limbed time, and a permanent residence abroad.

So in the case of *Crosby*v. *Percy*(1 *Taunton,*364) a temporary absence of the subscribing witness is pre*267supposed, and all that (he Court required to admit oo mi ary evidence, was to bo satisfied that an honest of-fort had been made to get the subscribing witness, that he was not designedly kept back. . '

And in *Ward*v. *Wells*(_1 *Taunton,*461) where the absence seems to have been temporary, the Court appears to have decided the case on an enquiry w hether the witness was out of roach of process.

To the same point is *Jldain*v. *Kers*(1 *Bos.*& *Pul.*360).

The same rule exists in several of the sister states. (5 *Mass.*462 — 11 *Ibid,*309). In this latter case, the witness *resided*in New-York. *Parker*J. says, “ the witness being absent and out of the Commonwealth,” secondary evidence must be received, and he assigns no other reason for it. In South-Carolina, *Olvphantw Tag-gart*(1 *Bay*355). So in North-Carolina, *Mien*v. *Martin*(l *Car. Law Rep.*373) when it appeared that the witness lived in South-Carolina ; he was out of the reach of process, and secondary evidence was recen ed.

To this it may be added, that the rule for which we contend, seems, in England, to be distinctly recognized, and not to admit of controversy j for *Peake,*in this treatise on Evidence, states, in so many words, that if a subscribing witness be absent at the time of trial, “ whether for a permanent residence, or temporary purpose,” proof of his hand-writing will he received, and lor tliis ho cites *Prince*v. *Blackburn,*before referred to. Wc may hence conclude, that the understanding of the Profession in England, as to the gi*ound of decision in *Prince*v. *Blackburn,*supports the view which we have taken of the case.

But it is said, that *Mr. Hines*was not summoned, nor was any attempt made to procure his deposition.

lie was not summoned, nor is the service of a subpoena in *any*case necessary to authorise the introduction of secondary evidence; but still less, if possible, is it here necessary, where the very ground on which a motion is *268ma¿je to introduce the secondary evidence is, that the witness is not bound to obey a subpoena. Service, or attempt to serve a áubpoena, is often shewn to the Court, but it is only to evince that a party has used due diligence.

As to not taking his deposition, there is no law which requires that an attempt should be made to take it before proof of hand-writing can be received. If there was, many of the cases in the books, on the admissibility of proof of hand-writing, where the residence of subscribing witness was known, would have presented no difficulty, they would have been disposed of on that ground. But the case of *Mien*v. Martin, before cited, has settled the question here, for it is one of the joints on which the case came up.

But it may be said, that this case is to be settled by an act of 1792, relative to registration of bills of sale of slaves.*

The act was not intended to alter any of the rules of evidence, but to prescribe the circumstances under which a party may be excused, both from the production of the subscribing witness, and proof of his hand-writing, and to declare when the probate and registration shall be taken as plenary proof. — Suppose a subscribing witness be insane, the act does not in such case, say that the instrument may be read on probate and registration, yet surely the Court would permit it.

The phrase “ removed out of the State,” can mean only such an absence as prevents the party from producing the witness.

*269So in the case of a deposition *de lene esse,*it is darv evidence. Suppose that the witness is absent at the ** *a*time of trial, but will return in ten days, the Court does mot wait for the witness.

*Hogg, contra.*—

At the common law, a subscribing witness must be called, unless he be dead, out of the Court’s jurisdiction, insane, infamous, interested, or, upon diligent search, not to be found *;*in. which cases, his hand-writing may be proved.

The act of 1792 has so far altered the common law, that in cases of death and removal (by which latter word is meant, a change of domicil, not a temporary absence) probate and registration may be received as proof of execution ; and the act seems to me to settle the question.

But if the case depends on the common law authorities, there can no case be found, where a subscribing witness, absent for a limited time, the period of whose return was certain, and not distant, lias been dispensed with. By a continuance of the cause, his examination *viva voce*might be had,, before his departure his deposition might have been taken, and in either case, the ap-pellee would have had the benefit of a *cross-examination.*

The general rule is of importance^ the exception is matter of convenience ; that a party who is in no fault, but has used all due diligence to procure his witness, shall not lose the benefit of his deed. The cases of exceptions are all well arranged in a note to 4 *East 55,*Day’s edition.

In *Prince*v. *Blackburn,*the return of the witness was uncertain *;*in our case, the return of *Mr. Hines*at a definite time, is certain.

In *Ward*v. *Wells,*enquiry had been made for a year, and witness could not be *found;*he was on a voyage to Spain, and his return was uncertain. The case justifies the belief that his absence was permanent.

*270in *Sluby*v. *Ckamplin*(4 *Johns. Hep. 467)*the witness had been *long;*absent, and when last heat'd of was at Leghorn.

In cases of witnesses being absent, and out of the jurisdiction of the Court, it has, on the one hand, been contended, that the witness should he domiciled abroad 5 and on the other, that it need only appear he was out of the reach of process at the time of trial, to let in secondary evidence of his hand-writing. — The truth lies between the two extremes. If there is no certainty of the return of an absent witness within the Court’s jurisdiction, proof of his hand-writing is received *ex necessitate'.*It is not easy to lay down ari inflexible rule for all cases, but the Court will take care that the one party shall not lose his rights under a written instrument, when a witness cannot be procured ; and that the other party shall not lose his cross-examination where his adversary has it in his power to take a deposition, or continue iiis cause to get the witness.

Thus in 18 *Johns. Eep.*60, the proof of hand-writing was not admitted, when the deposition of the *witness*could be procured.

Here, the testimony of *Mr, Hines*was completely within reach of the *appellant;*he could not have had a continuance, for his absence, for he never summoned him to attend, nor did he attempt to take his deposition before he left the State. It would lie strange, that the diligence of the appellant was not such as would entitle him to continue, and yet was sufficient to let in secondary evidence. If the cause was continued, the appellee sustained a little delay, and possibly some *costs;*by admitting the secondary evidence, he loses the cross-examination, and is subjected to no small hazard of having-a fraud practised on him. He can neither prove the facts attending the delivery pf the deed, nor, what is often all-important, *the time*of delivery. — If the rule is to be relaxed to the extent that a party need not produce the sub*271scribing witness, because it would oblige him to continue, it had better be abrogated altogether.

*Gaston,*oil the same side. — The rule anciently was, that a deed must be proved by the subscribing witness, if living *;*if dead, proof of that fact and of his hand-writing, was received. *(Com. Big. Evidence, B.*3 — 10 *Coke*93, *a. 2 Mk.*48.)

*Necessity*has, of late years, and since the American Revolution, induced a relaxation of the rule. -The earliest innovation is the case of *Coglilan*v. *Williamson, (Doug.*93.) The subscribing witness had gone to India live years before, and Defendant had acknowledged the debt, but declared that Plaintiff never could get the witness. Evidence of hand-writing was received *ex necessitate.*This was in 1779. In 1797, *Lord Kenyon*declared, that the relaxation, though very modern, had not extended beyond the case where a witness was domiciled abroad, or could not be.heard of: (7 *Term R.*266) and thus far, our Courts have adopted it. (1 *Laxo Rep.*375— . 2 *Ilayw,*404.

But subsequent Judges have further relaxed the rule. They have never however gone farther than this, that even if a witness be not *domiciled*abroad, but is abroad, and every exertion has been made, but without success, to get his testimony, then the Courts admit secondary evidence.

In *Prince*v. *Blackburn,*the witness left the country, *before action was brought,*lie was never amenable to its process-; and proof of his hand-writing was received on the same equitable principle on which the depositions of witnesses domiciled abroad had been received.

In *Adams y. Kers,*the witness resided permanently in Jamaica, and had never been amenable to process after suit brought.

So in the cases read from *Taunton*364 & 461, the relaxations of the old rule were introduced from *necessity.*

The modern rule contended for on the other side, does not seem to have been perfectly settled, even so late as *27226 Geo. 3, (1786-7) for in that year, a statute was passed as to bonds executed in the East-Indies, and witnessed there, declaring that proof of the hand-writing of the subscribing witness, of the party to the deed, and of the residence of the witness in India, shall be sufficient proof of the bond. But the enquiry is, not what is the English rule, but what, is ours ; — it is the same that *Lord Kenyon*held in ins time. Any further relaxation here is unnecessary, and of course illegal: unnecessary, because depositions *de bene esse*may be taken in every instance, and the witness compelled to attend. But in England, no decision can be found, that where the witness resides there, is known, and with the knowledge of the party is about to be absent, and is not summoned, that if absent at the moment of trial, his testimony may be dispensed with.

In *Gordon*v. *Paine (Martin*72) the witness was resident in the Stated but at the time of trial was absent in New-York and sick, proof of his hand-writing was not received. — See also 5 *Crunch*15 — 8 *Johns. R.*121. Here the witness lived in the adjoining coünty, the cause had been pending for years, Plaintiff knew that the witness would be out of the State at the trial, and he made no effort of any sort to get his testimony.

The true rule is to be found in our act of 1792 *;*the exceptions to the general rule made by the act, are in cases of death or removal. This case comes not within the meaning of the word *removal,*it implies a permanent change of residence $ it comes not within the equity or spirit of the law. Where there is a physical and legal power to compel testimony, secondary evidence is not admissible. This is the spirit.

*

*Be it enacted, &c.*That on all trials at law, where a written transfer or conveyance of a slave or slaves shall be introduced to support the title of either party, the due and fair execution of such writing shall be proved by a witness subscribing and attesting the execution of such writing ; but if such witness shall be dead, or removed out of the State, then the probate and registration of such writing maj he given in evidence.

Tayeor C. J. —

The general rule, which requires the proof of a bond to be made by the subscribing witness, has undergone various relaxations, the first of which-seems to have occurred in *Goghlan*v. *Williamson,**2731 *Doug.*93, which was certainly a strong case, since sides t!ie impossibility of obtaining the attendance of the witness, there was the defendant’s admission of the debt. The rule which now appears to be established in England is, that the secondary evidence is admissible, where the witness is out of the jurisdiction of the Court, so as not to be amenable to its process. Ido'not recollect any practice in this State which authorises a proof of the hand-writing under a temporary absence of the witness, and without a change of domicile, which I think it would be dangerous to establish, on account of the abuses to which it might lead. For a subscribing witness who might alone bo conusant of the corrupt consideration of a bond, might be sent over the line to suppress all proof except that of the execution. But where a man leaves the State in the exercise of a public duty, as in this case, as all presumption of collusion is thereby repelled, justice ought not to be delayed or interrupted by his absence. — I think therefore, it may fairly be considered as coming within the reason of other admitted exceptions to the rule, and that there ought therefore to be a new trial.

Hall Judge

—If the Defendant could not have dispensed with the testimony of the witness Sines, it would' have been incumbent on him to have-taken his deposition, because lie could not procure his personal-attendance. The witness being absent in the discharge of duties imposed upon him by law, so far resembled a witness whose place of residence was without the limits of the State ; of course, his deposition might have been taken, if tho party had thought proper to do so 3 but he was not obliged to do so, because it is a rule of evidence in our Courts, that the hand-writing of a documentary witness may be proved, provided he lives without the limits of the State._-I therefore think, that the rule for granting a new trial should be made absolute.

Henderson J. concurring,- —

Judgment reverse^