#### Silverman and another vs. Blake.

Where it became necessary in an action to prove the execution of an instrument under seal, and the question on appeal was, whether the absence of the subscribing witness had been sufficiently accounted for, so as to let in secondary evidence, the record showed that the name of such witness was *Zars*Nelson, and that a subpoena had been issued in the cause for *Ábrahm*Nelson, and that he was not in the county or state, but in the army of the United States. *JTeld,*that this court could not assume that the person so subpoenaed was identical with said subscribing witness.

EEEOE to tbe Circuit Court for *Ozaukee*County.

Tbe question presented by tbe record in tbis case is sufficiently stated in tbe opinion of tbe court. Tbe subpcena there referred to was addressed to *Abraham*Nelson.

*Hugh*Cunning, for plaintiff in error.

*A. M.*Blair, for defendant in error.

*By the*Court,

Cole, J.

This action was brought on an account which was assigned, under seal, by Moses Kilgore and Peter "W. Hoyt, to tbe plaintiff in error. The record • shows that tbe assignment was made in tbe presence of a subscribing witness by tbe name of *Lars*Nelson.' On the trial, the reading of tbe assignment in evidence was objected to because the subscribing witness was not called to prove its execution, nor was it shown that the party offering it had made a strict, diligent and honest inquiry to find such witness, so as to entitle him to give secondary evidence of its execution. To obviate this objection it appears that an affidavit of the attorney of the plaintiff was offered, which in effect set forth that a sub-pcena had been issued and returned, showing that one *Abraham*Nelson was in the army of the United States, and had no residence in this state. The subpoena issued in the cause was likewise offered, on which the sheriff had returned that he had made a diligent search to find *Abraham*Nelson, but that he was not in his county, and was in the service of the United States. The court held that the absence, of the subscribing witness *214had not been sufficiently accounted for, and the plaintiffs were nonsuited. It is now contended that this ruling of the circuit court was erroneous. It is admitted that the execution of the assignment should-be proven by the subscribing witness, but it is claimed that his absence was accounted for so as to render secondary evidence of the execution of the assignment admissible. And we suppose the affidavit of the attorney, and the return on the subpoena, before referred to, were offered for the purpose of showing that the subscribing witness could not be found, but was beyond the jurisdiction of the court. But the difficulty with this proof was, that it accounted for the absence of *Abraham*Nelson instead of *Lars*Nelson, the subscribing witness. There may be some mistake in the record upon this point, but; as it now stands, we cannot see how proof of the absence of Abraham tended to account for the absence of Lars Nelson. If Abraham and Lars were really the same person, this should appear in some way. But we cannot assume that they are different names of the same individual, and therefore cannot see that there was anything offered to account for the absence of Lars Nelson. And upon this ground we think the nonsuit was undoubtedly correct, and must be affirmed.

Judgment affirmed.