
    John Clark v. John Boyd.
    Where there is other proof that a subscribing witness to a writing resides in a different jurisdiction, it is not necessary to take out a subpena and have a return not found.
    Proof of the handwriting of the subscribing witness to a writing where the witness is out of the jurisdiction, is proof of its execution by the party.
    An assignment indorsed upon a note, and the note retained by the assignor-until his death, vests no interest in the assignee.
    This action was brought by the plaintiff, as assignee of Philip Pierce, and was founded upon two promissory notes, one for thirty-eight dollars, the other for two hundred and eighty dollars, both given by the defendant to Philip Pierce. The defendant pleaded non est factum, without affidavit, and gave notice of payment.
    At the trial before the Supreme Court in Highland county, to prove the execution of the assignment indorsed upon the note, the ¡plaintiff introduced a witness to prove the handwriting of the subscribing witness to the assignment, accompanied with proof that ,he resided in Pennsylvania. No subpena had been taken out for the witness, and the defendant’s counsel objected to the evidence. The objection was overruled, and the proof admitted. The handwriting of the attesting witness to the assignment being *proven, the plaintiff offered to give the notes in evidence to the jury, but the defendant objected, and insisted that the handwriting of the assignor must also be proven. The court overruled the objection, and the notes were read in evidence to the jury, and the plaintiff rested his case.
    The defendant then gave evidence to the jury, that Pierce, the assignor of the note, had been some time deceased, and that, at the time of his death, the note for two hundred and eighty dollars was found among his papers, indorsed by him to the plaintiff. That the executors, supposing it to be the property of Clark, had not inventoried it as part of the assets of Pierce, but had delivered it to the plaintiff. Upon this evidence the defendant’s counsel moved the court to instruct the jury that the plaintiff ought not to recover, unless, in addition to the fact of executing the assignment, they were satisfied the note so assigned had been delivered to the assignee, or some person for his use. This instruction the court gave, but the jury found a verdict against the defendant for the whole amount.
    The defendant moved for a new trial upon the grounds:
    1. That the court erred in permitting proof to be given of the handwriting of the subscribing witness,to the assignment, without a subpena having been issued for such witness, and returned not found.
    2. That the court erred in permitting the notes to go in evidence to the jury, without proof of the handwriting of the assignor.
    3. That no proof being given that the notes, after the assignment, were delivered to the plaintiff by the assignor, the verdict was against the charge of the court on that point, and against evidence.
    The consideration and decision of this motion was adjourned to this court.
    Bond, in support of the motion:
    It is not known that any particular practice has been established, in this state, as to what steps the party must take to entitle him to give evidence of the handwriting of a subscribing witness. The best and safest would seem to be a requisition that a subpena should be put in the hands of *the sheriff, a reasonable time before the court.. When that is returned that the witness can not be found, it furnishes a ground for bolief that the witness is not within reach of the process of the court.
    
      It has been decided that a note may be given in evidence upon proof of the handwriting of the subscribing-witness, without proof of the handwriting of the maker. These decisions in other countries ought not to conclude this court, and we claim that upon principle it is much safer to rely upon proof of the handwriting of the maker. It is the next best proof. The subscribing witness is the best proof, because we expect from him some account of the transaction, and the omission to produce him, if unaccounted for, involves a suspicion, that, if produced, his testimony would be unfavorable.
    It is a serious objection to the rule declaring the proof of the handwriting of the subscribing witness sufficient, that it puts the party in a better situation, to practice fraud, to have the witness absent. If the witness were present, and could say no more than that he recognized the handwriting, the case would not stand as strong as upon proof, in his absence, of the handwriting; for that proof involves the inference, that, if present, he would prove the execution.
    There was no proof of the delivery of the larger note after the assignment; the proof was full that it remained in the hand of the assignor until after his death. The jury have disregarded the opinion of the court as to the law, expressly given them in charge. For this reason there ought to be a new trial.
    Sill and Leonard, on the other side:
    It is only one mode of proving a witness out of the jurisdiction of the court, to issue a subpena and have the return “not found,” indorsed upon it. It is sufficient in the absence of other, and more positive proof, but can not be made to exclude that proof.
    The principle is well settled, that where a subscribing witness resides abroad, the proof of his handwriting is sufficient proof of the execution of the note to let it go to the jury. 1 Bos. & Pul. 360; 2 East, 183, 250; Sel. N. P. 562, *note 7; 1 Johns. Cas. 230; 3 Johns. 477; 4 Johns. 461; 1 Hay. 20, 238; 2 Hay. 404; 5 Cranch, 13, in note.
    There were circumstances which warranted the jury in believing that the note had been delivered after the assignment. Besides, this is a question between the executors and the plaintiff; as they have not contested it, the defendant has no right to do it. The note came to the hands of the executors indorsed — they delivered it to the plaintiff. This was in completion of the original contract, and was a sufficient delivery. We think this decisive of the case.
   By the Court :

The place where a person, who has subscribed any instrument of writing as a witness, may reside, is a matter of fact, existing in parol and consequently capable of proof in different modes. The knowledge of a witness examined in court, is, at least equal to any other mode of proof. The fact of a subpena being sued out and put in the sheriff’s hands, and returned by him “ not found,” can not be higher proof than that of a witness who testifies to his own knowledge of the residence of the person. The one can, upon no principle, be held a pre-requisite to the admission of the other. The court were correct in admitting the testimony as to the residence. The authorities cited show conclusively that where the subscribing witness resides out of the jurisdiction of the court, proof of his handwriting is prima facie proof of the execution of the instrument subscribed. If we examine the question, upon principle,, we shall find no sufficient reason for departing from the rule as settled elsewhere.

The question is, where the subscribing witness to an instrument is dead or absent, what is the proper secondary evidence to prove the execution of the instrument? The production of the subscribing witness is the best evidence. Where this can not be obtained, the secondary evidence, which is substituted for it, ought to be the nearest and most similar to it, in its character and circumstances. The proof of the handwriting of the witness is, quasi bringing him into court, and the legal presumption arising *upon this proof is, that the parties called him to attest the execution and delivery of the instrument. It proves as much as the subscribing witness can prove himself, in many eases. Frequently he can do no more than recognize his own handwriting, being unable to recollect anything of the transaction. In such case his testimony that the attestation is in his handwriting, and must have been made by him, is sufficient. The proof of the handwriting proves as much; its nature and effect ought therefore to be the same.

When the subscribing witness is dead or absent, the court have usually admitted proof of the handwriting of the obligor, but it does not follow that this proof must be required in addition to proof of the handwriting of the witness, nor is the exclusion of proof of the handwriting of the witness a necessary consequence of admit ting the one, where the other can not be obtained. Under proper circumstances, both modes of proof may be admissible, and either may be sufficient.

The jury were charged, that without proof that the large note, after the assignment, was delivered by the assignor to the assignee, or some person for his use, the plaintiff was not entitled to recover. Of this there was no proof; on the contrary, it was found among the papers of the assignor after his death.

The plaintiff’s counsel insist that the delivery, by the executors, was a sufficient delivery, to vest the right of property and of action in the plaintiff. But we do not think so. The assignment made by the assignor while the note remained in his possession, and where no contract of sale was proved, was a mere nullity. It was in his own power, and could at any time be legally erased. It gave no interest or title to the assignee, and when Pierce died he was the absolute owner of the note, notwithstanding the assignment. The right vested, by his death, in the executors, and could only be assigned by them. The plaintiff acquired no more right by a delivery, from the hands of the executors, than he could have acquired had they delivered him a note, payable to the testator without any indorsement. The charge of *the court on this point was correct, and the finding of the, jury is against both law and evidence.

New trial upon payment of costs. 
      
      Note by the Editok. — See cases cited in the note to the case on page 13 of ii.
     