
    M'Mahan against M'Grady.
    
      Monday, September 19.
    To prove a lost receipt attested by a subscribing witness the attesting witness must himself be produced, or the omission to do so, must be supplied in the same manner, as if the paper were produced.
    In Error.
    
      ASSUMPSIT, brought by M‘Grady, the plaintiff below, against M'-Mahan, in the Court of Common Pleas of Crazvford county.
    O^i the trial in the Court below, the plaintiff gave evidence that á writing, purporting to be a receipt signed by the defendant, and witnessed by William Allison, had existed, which, after diligent enquiry and search by the counsel in whose possession it had been, could not be found. He then offered evidence to prove, that the name of William Allison, subscribed thereto, was the real signature of William Allison. It appeared, that William Allison was, at the time of the trial, living in Erie county, and no subpcena had been taken out to procure his attendance,' nor any rule entered, to take his deposition. The defendant thereupon, objected to the evidence offered, but the Court admitted it, and the defendant excepted.
    Baldwin, for the plaintiff in error,
    contended, that the subscribing witness to a paper, must be produced, whether it be lost, ®r in existence.
    Farelly, contra,
    argued, that the attesting witness is not presumed to be acquainted with the contents of a paper, or able to fix its identity, when it is not before the jury. If he had witnessed several papers, he could not tell whether his name to the one in question, were genuine, or feigned, without seeing it.
    Tilghman C. J. sick and absent.
   Per Curiam.

If the paper had been produced, there is no doubt but the subscribing witness must have been called; and the only question is, what difference does its loss make. It is said, the subscribing witness is, in contemplation of law, supposed to attest nothing but the execution of the paper, without either having a knowledge of its contents, or being able to prove its identity ; and that of course, where the paper with his own signature is not produced, he can say nothing with certainty, on the subject. But even a reasonable supposition, that a witness can recollect or say nothing of the matter, to prove which he is, in the first instance, exclusively competent, is no ground to dispense with his attendance, and the party cannot go on with secondary proof of the fact, till the state of the witness’s recollection has been ascertained by producing him to the jury. Here William Allison would doubtless have been able to say, whether he ever witnessed any paper between the parties; (and even that would have been an important fact,) and if he could have answered in the affirmative, he might possibly have spoken of incidents and circumstances in the transaction, that would have served to establish the identity of the paper 5 and being in the first instance, exclusively. competent to prove the execution, he was also exclusively competent to prove the identity, which is a necessary part of the proof of execution itself. The judgment must be reversed.

Judgment reversed.  