
    
      DISMUKES & AL. vs. MUSGROVE.
    
    Appeal from the court of the eighth district.
    Proof of the signature of the witness ment does’1" that” ofbthe obligor.
   Porter, J.

delivered the opinion of the courf- The petitioners claim from the defendant certain slaves in her possession, to which they assert title in virtue ofa deed of trust, executed by their father in the year 1811, by which a certain Champness Terry was created trustee, on condition of delivering the slaves and their increase to the petitioners when they came of age or married. Damages are also claimed by a supplemental petition for the defendant’s having illegally entered into possession of the estate of Champness Terry, and intermeddled with it, and for the use of the slaves since they came into her possession.

The defendant pleaded that a judgment was J ° rendered, in the state of Mississippi, , the estate or Cham pness Terry, the trustee, for the negroes claimed in this suit; that on said judgment an order of seizure was granted, by the judge of the 8th district, in favour of Andrew Dismukes, the assignee thereof; that after said judgment, a transaction was entered into with the assignee and the respondent, by which a final settlement was made of all matters arising in the present action.

She further pleaded, that the judgment in the state of Mississippi operates as res judica-ta, and that the plaintiffs are precluded by it from maintaining the present suit.

To her defence she added the general issue, and an exception to the jurisdiction of the court.

To the supplemental petitions, the defendant pleaded various dilatory exceptions,which were afterwards stricken out of the court, as being filed too late; and further averred that she held part of the negroes in her own right, and part under Robert Singleton, who was the legal proprietor thereof

The answer closes by an allegation, that in consequence of the illegal sequestration sued in this case by the plaintiffs, she has sustain-d damage to the amount of $5000, for which she claims judgment in reeonvention. J

The cause was submitted to a jury in the court below, who found a verdict in favour of th, defendant. The court confirmed it, and the plaintiffs appealed.

The defendant offered in evidence a paper purporting to be an assignment from Ephraim Dismukes to Andrew U- Dismukes, before a person who styled himself Thomas Batchelor, notary public in the county of Amite, state of Mississippi, which was opposed on the ground that the defendant offered no proof of the hand writing of Dismukes, and that proof of the handwriting of Batchelor was not the best the nature of the ease admitted of The court admitted the evidence, and the plaintiffs excepted.

This exception being before the court for the first time, the question whether proof of the handwriting of a witness be sufficient, when he is dead or absent, without proof of the signature of the party to the instrument which the witness’s name is affixed to.

We hive looked into the books to see how the law stands on this subject in England and our sister states, and we think the weight of 7 authority, in the common law, is rather in fa-J vour of the opinion of the judge a quo.

But the rule is by no means perfectly Starkie says, that when the absence of the subscribing witness is satisfactorily accounted for, the proper proof is by giving evidence of the handwritirg of the attesting witness: and it is usual, in such cases, to give evidence also of the handwriting of the obligor.—Starkie on Evidence, Par. 2. 344.

In a note, however, to the work, he adds, it has been decided that, if the witness be alive, proof must be given of the hand writing of the obligor. The case appears to be a very modern one.—3 Maddocks, 370.

In our sister states, the decisions are contradictory. In New-York, Pennsylvania, Maryland, and North Carolina, the handwriting is sufficient. In New-York, the rule is firmly established. In Pennsylvania, the first time the question came before their supreme court, they decided that proof might be made of the handwriting of the witness, but left it unsettled whether proof of that of the obligor should not also be furnished; intimating, however,clearly, their opinion that establishing the latter would the best evidence. When the questioa 1 came again before them, they concluded that ° J proof of the witness’ handwriting was sufficient, on tjie ground that it had been long the practice in that state to receive it—1 Joh. cas. 230, 4 Joh. 461; 3 Burney, 192; 6 ibid. 45; 1 Har & I.337; 1 Haywood, 238; 2 Hay. 27, 404

But in South Carolina, they require proof of the writing of the obligor as well as the witness.—1 Bay. 255; 2 Bay. 187.

And in the supreme court of the United States, on an objection being taken that the subscribing witness had not been produced, the court said, “ The proof offered was such as is required, where a party to a deed, and the subscribing witness, are dead, the hand writing of both was proved.—8 Wheaton 283.

The doctrine, therefore, is not so well settled as to prevent this court from applying to the case those principles of law which, in their judgment, should govern it.

The rule is, that the best evidence the case is susceptible of should be produced. When the subscribing witness is alive, or within the process of the court, his testimony is the highest, and should be offered. When he is dead or absent, proof of his handwriting is not the best the case admits of, because such presumptive evidence only. The J _ was signed by the obligor. The witness’ signature may be genuine, and yet that of the ty it attests, not so. In such case, it is the duty of him who offers the instrument, to prove the handwriting of the obligor. Establishing it, establishes the fact to be proved, and -does not leave it (as in the case of proving the witness’ signature) a matter of inference from another fact, with which it is probably, but not necessarily connected.

The only case that can readily be imagined where this rule would produce hardships, is that of a stranger, whose handwriting was little known, coming into the country and exacting obligations before witnesses who, after his departure, died. No general rule can be laid down, that will not do injury in some particular cases. But that just spoken of, in our judgment, is nothing, in comparison with the danger that might result from sanctioning the other doctrine. The facility of proving any instrument under it is obvious. Whether forged or not, nothing more is necessary than to procure a non-resident of the state to put his« name to it as a witness; and thus, a paper false in itself, might he established by proving no» _ thing but the truth m a court or justice. It, to these considerations, we add that drawn from 2241 article of our code, which most plainly indicates the necessity of proving the hanü-writing of the obligor, no doubt can ex:stof the conclusion to which we are compelled to come.

Hennen for the plaintiffs.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be annulled, avoided and reversed; and it is fur. ther decreed, that this cause be remanded for a new trial, with directions to the judge, not to admit a paper signed Ephraim Dismukes, on the proof of the handwriting of Thomas Batchelor; and it is further ordered, that the appellee pay the costs of the appeal.  