
    Toliver Trammell vs. W. H. Roberts et al.
    
    The subscribing witness to a contract, whether under seal or not, must be produced to prove the instrument, if alive and within the jurisdiction of the Court. It is incompetent to prove it in any other way.
    Before Gantt, J., at Greenville, Spring Term, 1841.
    The facts of this case appear from the following report of his Honor : W. II. Roberts purchased of the plaintiff a horse, and gave his note to secure the consideration agreed to be paid for him, to which he signed his own and the names of Dennis and Thomas Westmoreland. The name of Kevil Roberts was attached to the note as a subscribing witness. He had not been summoned to give evidence as to the execution of the note by defendants. It was stated by the counsel for the defendants, that on filing the plea by Thomas Westmoreland, an affidavit had been made, that the note was not his.
    *From the circumstances, as proved, I thought this case might be considered an exception to the general rule. Thomas West-moreland might well swear that he had not signed the note, but it clearly appeared from the evidence, that both the Westmorelands had authorized W. II. Roberts to affix their names as parties to the contract. The plaintiff, Trammell, after the note had been taken, had an interview with the Westmorelands, and desired to know of them, whether Roberts had been authorized to sign their names; they replied in the affirmative, and assigned the reason why they agreed to it. It appeared by the testimony, that the subscribing witness was out of the neigborbood ; that he led an itinerant life, and a rumor prevailed that he was out of the State. A witness, however, testified that he was a native of Laurens district, and that he had recently seen him there.
    It appeared to me, that had the witness been present, he could not have testified to the facts which fixed the responsibility of the two West-morelands, more firmly than what was established by the testimony offered.
    Their liability or not to the payment of the note sued on, depended upon a fact aliunde — the execution of the note.
    I therefore overruled the motion for a nonsuit, on account of the failure of the plaintiff in not having the subscribing witness in Court, and deeming the testimony offered sufficient to fix the liability of Thomas Westmoreland, I signified as much to the jury in my charge, who-found accordingly.
    The defendants move the Appeal Court for a nonsuit in this case, and for a new trial, on the ground :
    That his Honor charged the jury that the plaintiff had proved the note, the subject of this suit, without the production of the subscribing witness, or accounting for him, by proving the handwriting of the parties and their declarations, notwithstanding the defendant, on filing his plea, also filed his affidavit agreeably to the Act of 1802, that the note was not his, and it appearing that the witness was residing within twenty-two miles of Greenville Court-house.
    
      Choice, for the motion.
    The question for the Court is, whether the party, under the Act of 1802, on filing his plea, files also his affidavit, denying the signature to the note, the ^plaintiff is not bound to offer or produce the subscribing witness to the note, or show that he has used due diligence in endeavoring to procure him. 2 Bay, 506; 1 McCord, 391; also, Plunket vs. Bowman, 2 McC. 138; 3 McC. 219.
    The subscribing witness to a bond or note, must be produced, if alive or within the State. 1 Starkie on Ev. 236.
    
      Townes, contra.
    It was not necessary, under the circumstances, to prove the note by the subscribing witness — taking the admissions of the defendant.
    The admission of a party is sufficient to bind him in all cases, and is the highest evidence.
    If the witness to the note had been present, he could only prove what plaintiff admitted. 2 Johnson, 451; Hall vs. Phelps.
    
   Curia, per

RichaRDson, J.

The verdict is, perhaps right according to the evidence before the jury, and would have been satisfactory, but for the strict rules of law. The question is, whether the evidence received to prove the signatures to the note, was competent in law, when Kevil Roberts, the subscribing witness was within the reach of the Court, and might have been brought to testify, in person, to the contract he witnessed. In such a case, and at common law, the subscribing witness must have testified in person, and in case he were beyond the reach of the Court, then other witnesses, by proving his handwriting, and the signatures of the makers of the note would furnish legal, though secondary evidence of the same facts. (See 1 Starkie, 126-30, and the cases cited.) But does the Act of 1802, (5 Stat. at large, p. 435,) alter this rule of the common law, in such a case ?

The Act declares that “ the absence of any witness to a bond or note, shall not be deemed a good cause for postponing a trial,” &c. “ But that the signature to such bond, or note, may be pro red by other testimony, unless the defendant, at the time of filing his or her plea should swear,” &c., “ that the signature to the bond or note, is not his orher’s.”

See 11 Rich. 318, and cases there cited. An.

In the ease before us, one of the defendants had, in fact, so sworn, and that being done, it follows that the case was taken out of the provisions of the Act, and stood at common law as if no such Act had been passed. We must then judge the case by the common law rules already noticed. But *it may be satisfactory to observe that the object of the rule, that competent or the best evidence shall be adduced, is not merely that conviction or belief of the jury, upon the facts of the case, shall be produced, but that such belief shall be produced by legal evidence ; and the decision of the Court turns upon that distinction.

Why is it, that without competent evidence, no case can be heard, and nonsuits are ordered ? It is lest belief should be impressed upon the jury by illegal evidence, and verdicts be given through partiality, preju dice, or credulity, which are human weaknesses ; and the law being unable to control them, yet limit their influence by known rules or measures of evidence, which the Judge is to apply according to the legal character of the evidence offered

It is plain, then, that the rule in question has a sound policy, similar to that of the Act requiring three witnesses to the last will, or to the rule of the civil law, which requires two witnesses to a fact. There is safety in such guards, against partial decisions, as well as frauds, and the uniformity and coherence of laws depend greatly upon the adherence to its rules of evidence. However probable it may therefore be, that the evidence of Kevil Roberts will not alter the verdict, yet, the reasons of so established a rule require that there should be a new trial in order that the verdict may follow legal evidence.

O’Neall, Evans and Butler, JJ., concurred.  