4 Rand. 325 | Va. Ct. App. | 1826
Gilliam and Perkinson, entered into written articles of agreement, by which Gilliam employed Perkinson as
The general rule on this subject is, that if there be a subscribing witness to an instrument, his evidence is the best and must be adduced, if in the power of the party. But if the witness be dead, or blind, or insane, or infamous, or interested since the execution of the deed, or beyond the process of the Court, or not to be found after diligent enquiry; in all these cases (and others perhaps might be stated) the course is, to prove the hand-writing of the attesting witness. This is evidence, of every thing on the face of the instrument. The sealing and delivery will bo presumed; and it is laid down in many cases, that it will not be necessary to prove the hand-writing of the party to the deed. Other cases, however, have required such proof to connect the party with the instrument.
The latest case I have examined on the subject, is that of Nelson v. Wittal, 1 Barnew. & Ald. 19, decided in 1817; and there the question seems to be considered as not settled. Lord Ellenborough says, “ It has been the constant practice, in- eases where the subscribing witness is dead, never to look at any thing beyond proof of the handwriting of the witness, and I should think, that in all cases, it was prima facie evidence of the instrument having been
In the case before us, however, I consider no relaxation of the rule required, to support the judgment of the Court below. The attesting witness, being dead, the first call would be for proof of his hand-writing; and wherever that could not be had, the hand-writing of the party might be proved. Whether this inability proceeded from fortuitous circumstances, or the very nature of the transaction, would be immaterial. In the case before us, the witness has made his mark. Now I ask, how could this be proved ? There is a distinct, individual character, in the hand-writing of every man who can write; and with those who have written much, that character is so fixed and striking, that persons acquainted with it, will feel no more difficulty ih recognizing it, than in knowing the face of the writer.