
    Holloway v. Laurence.
    From "Wilkes.
    The subscribing witness to a bond must be produced to prove it, upon tin: plea of non est factum : but the parties are not confined to liistes- • timony ; and the obligee is at libei'ty to give evidence also of tlie handwriting of the obligor, or of any other fact tending to establish that it is his bond — as his acknowledgment or the like.
    Debt on bond : plea, non est factum. Plaintiff produced the, subscribing witness, who swore that he signed the bond, as a witness, at the request of the obligor or obligee, but that be did not recollect which : be further said, 'Ie did not see Laurence sign the bond, nor bear him acknowledge it, and that it was not delivered in his pro sence. The Plaintiff then offered other witnesses to prove the hand-writing of the Defendant, and they were received by the Court, .and proved the signature to the bond to be in the hand-writing of Laurence. The Jury found it to be the deed of the Defendant. He moved for a new trial, because improper evidence had been received; bnt.it was refused, and he appealed to this Court.
    The case was not argued here.
   Tayror, Chief-Justice.

The subscribing witness has given extraordinary testimony. lie swears that he signed the bond as a witness, either at the request of Laurence or the obligee $ yet he further swears that lie neither saw the Defendant sign the bond, nor heard him acknowledge it, and denies that it was delivered in his presence. From bis own admission, his attestation might have been at the request of the Defendant; and, if the Jury so considered it, they might properly infer from it, the Defendant’s acknowledgment of the execution.

"Where there is no subscribing witness, or where the. subscribing witness swears that he did not see it executed, tire deed may be prov'd by evidence of the hand-writing of the party to the bond, And in Grellier v. Neale, the subscribing witness had been requested to put his name to the deed by one of the parties who had signed it — so, where file person, who subscribes as a witness, does so without the knowledge or consent of the parties, as in M'Raw v. Gentry, 3 Campb. 232. In ail these cases, the hand-writing of the obligor, or his acknowledgment, is the best evidence the nature of the case admits of, and must be submitted to the Jury. The judgment of the Superior Court must, therefore, be affirmed.

Hewdersor, J.

said, that after the testimony of the subscribing witness had been produced, cither party is at ii-berty to give evidence as to the hand-writing of the obli-gor — a bond is not absolutely proved, because the subscribing witness swears to its execution j for the Jury may not believe him — nor is it destx'oyed by his denying his handwriting, or by his saying he did uot see it executed. O ther testimony may be given to prove that it is, or is not, the bond of the Defendant; nor, indeed, are the parties confined to evidence of the obligor’s hand-writing, but may give any other testimony tending to establish that it is the parties bond.

Harr, J. assented ",

and the motion for a new trial was refused. 
      
       Ley v. Ballard, 3 Espin. Rep. 173. Fitzgerald v. Elsee, 2 Campb. 634.
      
     
      
       Peake’s N. P. Cases, 23.
     