
    CONSTITUTIONAL COURT,
    CHARLESTON,
    MAY, 1803.
    Myers v. Taylor.
    The act of 1802, which dispenses wjth the necessity of calling the subscribing witnesses to a bond, or note, to prove its execution, unless it is denied by the defendant on oath, does not dispense with the rulé that .the next best evidence must be produced.: and where the subscribing .witnesses do not attend, their handwriting must be proved, as well as pie signature of the obligor. Vide 2 Faust, 453.
    Motion for a new trial. The action was debt on a bond, and was ¡tried in Georgetown district,before Bay, J. The bond was produced, and the handwriting of the obligor being proved, Bay, Jr, decided that ..such proof jvas sufficient,.in virtue of the late t ct of assembly, of 1802', without any proof by the subscribing witnesses, or proof of .their hand writing.
   The Court,

Bay, Johnson, Trezevant, and Brevard, Justices,

.(Grijike, J. and Watiks, J. absent,)

determined the construction of the act to bo, that wherever the bond is not denied by the plea, or the plea is not sworn to be true, there the attendance of the witness to prove the bond may he dispensed with, in like manner as if such witness were dead, or without the limits of the State ; but it will still be necessary to give the next best evidence, lhatthe nature of the case admits of, to prove the bond, viz the proof of the handwriting of the witnesses, or of one of them, in proof of the delivery, as well as the signature of the boud. The court gave no opinion on the question, whether the intention of the legislature was to relieve against the inconvenience only, which resulted to plaintiffs in cases where the sub. Scribing witnesses to hoods could not be prevailed on to attend court, either on account of the remoteness of their situation, their station, or Some other such cause; or whether the act does not render it unnecessary to subpoena the subscribing witnesses, unless where an oath is made by the defendant denying the deed. The court merely ruled, that it xvas necessary to prove the handwriting of the sub. scribing witnesses to a bond, in proof of delivery of the bond, as wpll ps, to prove the signature of the obligor.

New trial granted.  