The proof is not sufficient, agreeably to the practice which had hitherto prevailed in the state. Proof by one living witness would be sufficient. In this case it does not appear but that the other witness is living, and if so, his testimony ought to be had. Some account of this witness ought to be given; that he is dead, that enquiry in the neighborhood of his residence, has been made after him without effect, or that he has removed to some foreign nation. If he resides in another state, his testimony ought to be had, such having been the uniform course of decisions here. We are however aware, that the rules of evidence respecting proof by subscribing witnesses, have been much relaxed by modern decisions in England, as well as several of states.
Non-suit.
Dickinson on the argument day, moved to set the non-suit aside, stating, that he was minded by the modern authorities referred to by the court. He did not know the law was settled as the court had stated; he hoped the court would admit an investigation, by granting a new trial.
Per Curiam. Let the non-suit be set aside, and a new trial granted, on the payment of the costs of this term.
See 2 East. 250. 4 John. 461 Camp. R. 412. Taunton 364.