#### PLEASANT BLACK *vs.*LABAN WRIGHT, EX’OR, *&c.*

Proof of the hand writing of a deceased subscribing witness to a bond is not,' strictly, *prima facie*evidence of the execution of the bond, though it will authorize the reading of the instrument to the jury. But the jury must weigh this; together with the other circumstances given in evidence, and, from the whole, determine whether the alleged instrument was executed or not.

It Is among the strongest circumstantial proofs against a person, that he omits to give evidence to repel circumstances of suspicion against him, which he would have it in his power to give, if those circumstances of suspicion were unfounded.

Appeal from the Superior Court of Law of Rockingham County, at the Spring Term 1849, his Honor Judge Dick presiding.

This is an action of debt, commenced January 27th 1844, on a bond to the plaintiff for $111, dated January 11th 1838, and payable one day after date. Plea, «ore *est factum.*

On the trial the plaintiff produced the instrument, which purported to be executed by the testator by making his mark, and to be attested by John Wall, junior, a *448son of the testator; and he proved the death of the subscribing witness and his handwriting.

The defence was, that the alleged bond-was a forgery. In support thereof the defendant gave evidence, that the ■instrument was all in the handwriting of the subscribing witness, John Wall, junior, and that he was a man of bad character, as early as 1838, and had the reputation of being a gambler, swindler, and passer of counterfeit money, and was unworthy of credit. The defendant also gave evidence, that in April 1841, his testator gave to the plaintiff, on dealings between them, a bond for $71 74, and that in May 1842, the plaintiff brought a warrant thereon and took judgment against the obligor, who staid it, and died in August following. The defendant also gave evidence that his testator could not write, but was a marksman ; and he called one King as a witness, who stated, that, for the last twenty years of the testator’s life, he, the witness, had done the most of his business for him, such as writing and making settlements for him, and had often seen the testator make his mark to bonds and other instruments, so that he believed that he could distinguish it from the marks of other persons ; and he deposed, that, in his opinion, the mark of the alleged bond was not that of the testator.

The defendant offered further to give evidence, that the plaintiff had a book account against the testator for dealings commencing in September 1S38 and ending in April 1839, and that, at the latter day, the testator paid it, and took the plaintiff’s receipt thereon. But the Court rejected the evidence.

The defendant offered farther to give evidence, that Wall, junior, was dissatisfied with his father’s *will.*But the Court rejected this also.

The defendant then offered further to give evidence, that the plaintiff hud two other instruments, purporting *449to be bonds given to him by the testator, and to be wit* nessed by John Wall, Junior, bearing different dates from, that sued on in this action and subsequent thereto.;-. and that they were all in the hand-writing of Johns Wall. jr.: And the defendant alleged that,.in fact, the three instruments were written by the said John Wall, junior, upon, the same sheet of paper and at the same time, and that the same would so appear upon inspection of the instruments ; and to that end the defendant offered the other-two alleged bonds in evidence. But the Court refused to-receive any part of this evidence.

The plaintiff then gave evidence, that John Wall, the-elder, had said that his son,. John, was running him in debt and would ruin him, if he did not stop..

. The Court instructed the jury, that the plaintiff had made out a *prima facie*case, by proving the death of the-subscribing witness and his hand-writing, which entitled him to a verdict, unless they were satisfied, that the bond was a forgery: and that the only evidence tending; to prove the forgery was the testimony of King, and that relating to the bond for $71 74, and the bad character of John Wall, junior.

The jury found for the plaintiff, and the defendant appealed from the judgment.

No counsel for the plaintiff.

/. *T. Morehead,*for the defendant.

Ruffin, C. J.

The Court thinks there ought to be a *venire de novo.*We are not satisfied with the instructions given to the jury on the case made by the evidence, which went to them, and we are also, of opinion, that pro» per evidence was exeluded.

Although proof of the signature of a dead subscribing witness is sufficient to allow the instrument to go to the jury, yet, where there is also evidence tending to disprove *450the execution of the instrument, we think it is not correct to say, that the evidence of the hand writing amounts *to prima facie*proof of the plaintiff's case: that is, as defined here to the jury, such as *entitled*the plaintiff to a verdict, unless the jury should be *satisfied*by the evidence on the other side, that the instrument was a forgery. That is changing the *onus*of proof improperly, as it seems to us; for, in such a case, it must be a question for the jury to determine, according to the weight of circumstances on each side, whether in fact the instrument was or was not executed. It is to be remarked, that, there being no direct proof on either side, as to the execution, it is purely a question of circumstantial proof. The evidence of execution from the proof of the hand-writing of the attesting witness is nothing more than a presumption, that what the dead man witnessed was executed. It is so commonly true, that the law allows it to be evidence to the jury, on which they may find-the fact. But it is not conclusive ; nor has it, that we are aware of, any such peculiar virtue, as to oblige the jury to find according to the probability it raises againt opposing probabilities, unless the latter be of such a character as to leave no doubt with the jury to *satisfy*them, that, in fact, the person, whose bond it purports to be, did not execute it. In such a case, as in others, the *onus*as to the execution is on the party setting up the deed ; and, although he is entitled in law to read the paper to the jury,' upon proof of the signature of the witness, yet there may be suspicious circumstances shewn on the other side, which may prevent the jury from being satisfied with the evidence of the band-writing of the witness, by itself, as *establishing*the execution : a thing *to be*done by the plaintiff, before he can entitle himself to a verdict. Hence, in such cases of suspicion, the plaintiff generally resorts to other evidence, in support of the presumption from the hand-writing of the witness : such as that he was a man of fair standing-; *451that he, the alleged obligor, acknowledged that he gave the bond; or that the signature is in the hand-writing, or that there were dealings between the parties, on which such a debt might probably have arisen ; or the like. In fine, the presumption of execution from the proof of the hand writing of the witness cannot stand higher thandi-rict proof of execution by the subscribing witness himself; and, as in the latter case, though the bond goes to the jury, yet they are to judge of the credit of the witness according to all the evidence, so, in the former case, all the presumptions on both sides are for the consideration of the jury, and unless they preponderate in favor of the plaintiff, it ought to be found that he failed to establish the issue on his side.

In like manner it was calculated to mislead the jury, to instruct them that the testimony of King and that relating to the bond for $71 74, and the bad character of the son, was the *only*evidence tending to prove the forgery. It is true, that was all the affirmative evidence on that point. Indeed, but a part of that was of that kind of proof; for the evidence as to the son’s character and the small bond, afforded only negative presumptions, that the testator did not execute the bond in suit. But the circumstances afforded other evidence of the like negative character, relevant and material, which might have had much weight, had it been submitted to the jury in its proper connexion. It is classed by writers upon the law of evidence and presumptions, as among the strongest circumstantial proofs against a person, that he omits to give evidence to repel circumstances of suspicion against him, which he would have it in his power to give, if those circumstances of suspicion were unfounded. 3 *Stark. Ev.*4S7. Hence when witnesses, for example, depose that the signature to a bond is not in the hand-writing of the person sued, and the obligee and alleged obligor live near each other and in the immediate vicinity of the place of *452trial, and the latter is a man of extensive business, whose hand-writing is generally known, and the former calls no witness to the point, when he might so easily do so, if the signature were genuine, the omission affords the same kind of evidence against the deed, that the omission of the possessor of property, recently stolen, to account for his possession, does against him. It is true, that it is not applicable to the case of a marksman ; b.ut it is but one example of that species of evidence in reply, which the party might give, and, no doubt, would give, if his case were honest. For example, here the defendant gave evidence, that, three years after the date of the instrument sued on, the testator gave the plaintiff a bond, and shewed also the consideration on which it was founded, and that, without much indulgence, the plaintiff sued him on it. Why, then, did the plaintiff, if he at that time had the bond, which is now in suit, indulge the testator on it for six years ? To meet that circumstance, the jury might well require the plaintiff to show by his clerk, or some member of his family at least, that in fact the paper was in his possession during that period; that there was a communication between him and the testator, and that the forbearance was extended at the latter’s request; or that there had been at the date of the bond, or prior, a transaction on which the testator might have owed the sum. The total omission of all such proof furnishes, in itself, presumptive evidence of no slight force. It was,, therefore, erroneous *to lay it*down, that there was no evidence in the cause, but the isolated circumstances enumerated.

The observations just made serve also to render it plain, that the rejected evidence of the dealings in 1838 and 1839 was relevant and proper. It was in the nature of connected evidence of the dealings between the parties for several years, and the frequency of settlements and speedy oolleotion of the sums.du.e; and thus — espec« *453ially, in absence of all proof in reply — to render it less probable, that the plaintiff would have waited so long for the debt now demanded, if it existed as early as January 1838, and, thus, with the other circumstances, raise the inference, that the bond was not given then, nor, by consequence, at anytime.

Upon the same principle — and also for other reasons— the evidence ought to have been received in relation to the other bonds held by the plaintiff, on which he. had probably instituted other suits against the defendant. It is true, that evidence, simply, that the plaintiff or his subscribing witness had forged another bond on the testator, would be no proof that the present instrument is a forgery. But the object here was to connect the three instruments together, and to shew that the fabrication of the whole was one act. Keeping in mind, that the plaintiff withheld three bonds on the testator, payable to the plaintiff; that they were all in the handwriting of the same subscribing witness, a man of very bad character; that they were of different dates, so as to purport that they had been made at different times; it certainly would be adding great and just suspicion to the transaction, if it should appear, that they were all made at one and the same time, and the plaintiff should still omit to show, by any dealings at any time, a fair origin for either. That they were written on the same sheet of paper made at the same time, though bearing different dates, might appear by direct proof; but that is hardly to be looked for in such a case; and certainly inspection is a mode in which the jury may, to some extent, judge, as from the color of the ink, the kind of pen, the water marks on the paper, or the fitting together of the different pieces, as in the case of Indentures anciently, that the work was all done at once. If such was the fact, it increases the force of the presumptions from .the defect of proof as to a consideration ; as the greater the magnitude of the dealings, *454the greater the likelihood, that they would be known and capable of proof; and, certainly, some reason ought to be given in explanation of the extraordinary circumstance, that, notwithstanding the bonds wrnre written and executed at the same time and on the same sheet of paper they should be dated differently, so as to purport to have arisen from different transactions. We must say, that, in our judgment, such evidence would have added greatly to the suspicions in the case, and was, therefore, fit to be laid before the jury, as tending to impair the presumption of execution, w'hich arose from the attestation of the wu-iter of the several instruments.

Per Curiam. Judgment reversed and *venire de novo.*