
    *Jackson, ex dem. Woodruff and others against Cody.
    TTTICA,
    August, 1828.
    A patent was who^as^described in the balloting book
    by that name, and as a revolutionary soldier. The plaintiff .proved and ielie'd on a deed from Patterson, described as such soldier in the body, but signed ‘Petterson; held¡ no material variance, and that, át" any-rate, it was such- an ■ ambiguity as might be explained^ and that, if the soldier intended by the deed was Petterson, and a man different from Patterson, it lay with the defendant to show this. He had a right to show it.
    To warrant proof of the hand writing of subscribing witnesses, or either of them, as a substitute for their production, it must be proved that they are all either dead or beyond the jurisdiction df the court. This must be shown with reasonable1 certainty.
    Proof that a witness cannot :be 'found, on diligerit -inquiry, lis evidence of Ms death or absence. (Inquiry in this case Was made miinly-at-the place where the deed described the grantor as residing.)
    Where'there was adispute as-to the identity of a'witness -to a deed, there being several persons of the samemame,-a witness, in order‘to identify him, was-allowed to compare the hand writing subscribed as an attestation to the deed, with another writing long in his possession, and reputed'to be'the:hand writing of a-man of the name subscribed, though he had Biever seen that man* Write.- This evidence was received without «objedtion; and the court inclined to think the evidence would have been admissible for the purpose of identity, even1 if it had-been objected to. J
    
    Where all’the BtibscribingwiineSses to a-déed-are-dead,' proof-of the-hand writing" of one of them proves'the deed.
    Testimony not objected to, -must bej considered as received by consent.
    Whore the-lessor df the-plaintiff shows a deed of -land under which he claims from A., and the defendant shows a subsequent deed-of‘the same land, under which he claims, from a person of the same namewith A., itlies'Withhim (the defendant) to show that the grantor in the first deed was not the owner of-the-subjeot granted.
    If there be’a'defeót of pro'of-on one side at the atrial, which: may be supplied, the opposite party must object such 'defect. If he omit'to do so, he cannot-avairhimself-of the defect on a motion-fora new trial.
    Thus, where the defendant claimed land in the military tract as a subsequent purchaser, the'plaitttiff’s previous deed having been duly deposited as -required by law,-on a motion for anew trial, the defendant would have objected that the mere deposit of the deed was not notice to him; sed non allocatur, for this was not objected at the trial; and non constat, that if it had been actual notice might not have then been proved.
    
      Ejectment, tried before Throop, circuit judge, at the Onondaga circuit, on the 8th day of February, 1827.
    
      And so, semble, actual notice of a deed of military land makes it available against a subsequent purchaser, though the first deed was not registered.
    Where counsel rose to address the jury, and the judge told him he should charge against him, and he did not, therefore, address the jury; held, that this was a voluntary relinquishment of the right to address them, not compulsory by the decision of the judge.
    Specimen of an entry in the balloting book,.of land drawn to a revolutionary soldier.
    This is the authority for a patent. Per Sutherland, J., delivering the opinion of the • court.
    What is sufficient to prove the death or absence of a witness beyond the jurisdiction of the court viz. that he went from his residence more than 20 years ago, (as the witness testifying understood,) to New Orleans, or somewhere to the southward, and the witness testifying had since heard he was dead: received without objection.
    The directory of the city of New York for the year 1792, searched, proved and produced in evidence without objection, to identify a grantor in a deed.
    Endorsement of registry of a deed of military bounty land by the clerk of Albany, proved in a book kept in pursuance of the act of January, 1794.
    A registry of deeds of military bounty lands by the clerk of Albany, appears, by the case, to be merely setting down the names of the grantors in a book, in order, as directed by the act of January, 1794, not copying or recording the whole, deed, as under the general registry acts.
    Claim of title and descent proved, showing a claim of five ninths of the prer question.
    *The action was brought to recover a part of lot numbe 43, in the town of Cicero.
    The plaintiff called as a witness Abraham Gridley, clerk of the county of Cayuga, who produced the exemplified copy of the balloting book belonging to the office of the clerk of Cayuga county, and filed in that office pursuant to statute. The original was filed in the office of the sec retary of state. From this it appeared that William Patterson drew lot number 43, in the 6th township, (Cicero,) for his services as a soldier in the revolutionary war with Great Britain; and that the lot was patented to him on the 13th of September, 1790. The entry in the balloting book was in the words and figures following:
    
      
    
    Gridley testified that the exemplification was the copy of the balloting book filed in his office as clerk of the county of Cayuga, in pursuance of the statute for that purpose.
    The plaintiff next produced and read in evidence an exemplification of a patent for the lot to William Patterson, dated September 13th, 1790, and which was approved by the commissioners of the land office, and passed the secretary’s office on the 21st day of March, 1792.
    The plaintiff next produced a deed covering the lot, purporting to have been executed by William Petterson, describing him, however, in the fore part of the deed, as William Patterson, late a soldier in the revolutionary war, in Hazen’s regiment, to John Blanchard, of the city of New York, gentleman, bearing date the 6th day of December, 1790; on the back of which was endorsed, “Registered 30th April, 1795,” and an entry of the registry was read in evidence from the book of registry of filed deeds, kept in the office of the clerk of Cayuga; which book was produced by the witness Gridley, who testified that it was the book remaining in his office of such entries.- This deed appeared to have been duly acknowledged on the 16th of March, 1808, and recorded in the office of the county of Onondaga on the 8th day of June, 1808.
    *The deed was objected to as not being from William Patterson, but William Petterson, and the objection overruled.
    The plaintiff next produced a deed, purporting to have been executed by John Blanchard and Mary his wife, of New York, to Asa Danforth, bearing date March 27th, 1792, covering the lot in question, and another lot. This deed was witnessed by John Durham and Phineas Pierce, and was produced by the witness Gridley, who testified that it was one of the filed deeds in the office of the clerk of Cayuga county, and for the purpose of entitling it to be read in evidence; the plaintiff produced David Cook as a witness, who testified that he resided at Geneva 32 years ; that he knew Phineas Pierce, and had frequently seen him write; that Pierce went away from Geneva 25 or 26 years since; and, as he understood, went to New Orleans, or somewhere to the southward; he had heard he was dead; that the name Phineas Pierce subscribed to the deed looks like his hand waiting, and he believed it was. Daniel W. Farman, on the part of the plaintiff, testified that he went to New York in the fall of 1825, and made inquiry for John Blanchard. He was informed that a John Blanchard had lived in Water-street, in the city of New York, in the year 1792, and had moved somewhere up the North River, it was believed to Catskill \ he found three, or four persons who knew Blanchard at the time he resided in New York: two of them informed him when Blanchard went., The witness found, by the directory of the city of New York for the year 1792, that there were at that time, living in the city two John Blanchards. The witness also made inquiry for John Durham and Phineas Pierce the witnesses to the deed, and upon a thorough examination,, and after advertising for them, he could not find that any such men ever lived in the' city. He only inquired in the city of New York. That he has since inquired, and found that a man by the name of John Durham once lived in the city of New York, that he afterwards lived in Newton, Tioga county, and is now dead. He was not. informed when he died. He also ascertained that there was another John Durham, son of the one last above mentioned, who also lived in Newton, and died there about a year ago *Witness also found that there were two Phineas Pierces ; and he had before, under a commission, proved that the Phineas Pierce who witnessed the deed, died at Plainfield, in the state of Connecticut. On the back of the deed was endorsed these words and figures: “ Registered 30th April, 1795 and the witness Gridley testified that the hand writing of that endorsement was the same in which the greater part of the filed deeds in his office were endorsed. The .plaintiff then produced the book in which the clerk of the city and county of Albany was directed, by the act of the 8th of January, 1794, to register the name of every person whose name should be to any deed, as having executed the same, referring to deeds deposited under the act. The book belonged to the clerk’s office of Cayuga county, and was produced by the clerk of that county, wherein appeared the registry of a deed from John Blanchard, dated 'March 27th, 1792, to Asa Danforth, registered 30th April, 1795, which was all the deed registered in that book in which John Blanchard was a grantor.
    The reading of said deed in evidence was objected to, because the execution of it had not been sufficiently proved, and the objection overruled by the court; and the deed was then read in evidence.
    The plaintiff then produced in evidence the exemplification of the record of a deed from Asa Danforth to John Carpenter, covering the lot in question, and also, another lot in Aurelius, in the county of Cayuga, dated March 19th, 1798, acknowledged May 8th, 1798, and recorded in the Cayuga clerk’s office, May 12th, 1798.
    George Hall, a witness for the plaintiff,
    testified that he knew John Carpenter, that he died in 1801, that five of the lessors of the plaintiff were his children and heirs at law; and the plaintiff claimed to recover £ of the premises in question, C arpenter leaving nine heirs. D. W. Farman, for the plaintiff, proved the defendant, at the time the suit was brought, in possession of 240 acres on the west side of said lot.
    Here the plaintiff rested, and the defendant moved to nonsuit the plaintiff, because he had not identified which of the John Blanchards was the grantee in the aforesaid deed from *William Petterson, nor under which John Blanchard they claimed. The court denied the motion.
    The defendant, in his defence, introduced as evidence the directory of the city of New York for the year 1792, from which it appeared that there were two John Blanchards then residing in that city, one in Water-street, a tavern-keeper, and the other in Partition-street, a brass founder.
    The defendant next produced in evidence the record of a deed covering the lot in question, from John Blanchard, described as being late of the city of New York, to Justus McICinstry, of the city of Hudson. It was a quit-claim deed for the consideration of $300, bearing date the 7th day of November, 1817, duly proved on the 8th day of November, 1817, and recorded in the office of the clerk of Onondaga county, on the 8th of December, 1817.
    The defendant next produced a quit-claim deed of the lot in question, from Justus McKinstry to Alexander Nee-, ley, dated January 28th, 1824, for the consideration of 1000 dollars, duly acknowledged and recorded in the office of the clerk of the comity of Onondaga, on the 8th day of December, 1824.
    The defendant then produced in evidence a warranty deed for the premises in question, from Alexander Neeley and wife to Isaac Cody, the defendant, bearing date July 25th, 1822, duly acknowledged and recorded in the office of the clerk of Onondaga county, on the 3d day of April, 1824, for the consideration of 1600 dollars.
    George W. Tanner, a witness for the defendant,
    testified that he knew a John Durham in Claverack, about six years ago; that he appeared to be a man rising 60 years of age at that time; that he never saw him write. He was a respectable man, and owned a small farm. The witness understood Durham had moved from Claverack about four years ago, to Windham, since which he had not heard from him. He had seen him very often.
    Lathrop Main, a witness for the defendant,
    testified that he knew a John Durham and saw him last fall 10 or 12 miles east of Genesee river, and 4 miles from Livonia. He supposed him to be between 50 and 60 years of age, understood he lived at the place where he saw him, and that he was a farmer. •
    *Benjamin Durham, for the plaintiff,
    testified that his grandfather’s name was John Durham; that he had lived in New York, as the witness understood, and died previous to 1804; that the witness’ father’s name was also John Durham, and that he was also dead. The witness produced an instrument purporting to be executed by John Durham, which the witness understood to be his grandfather’s hand writing, and the witness had no other knowledge of his grandfather’s hand writing than from this instrument, which had been long in his possession. From such knowledge, the witness believes the hand writing subscribed to the deed from Blanchard and wife to Danforth, was the hand writing of John Durham, his grandfather.
    • Here the testimony on both sides closed, when the counsel for the defendant rose to address the jury. But his honor, the judge, remarked that he considered the case as depending on questions of law, and not of fact; and that he should so charge the jury; and that he should also charge them that, upon the whole matter, the plaintiff was entitled to recover f of the premises in question, upon which the defendant’s counsel omitted to sum up the cause,' and his honor (as above) directed the jury to find a verdict for the plaintiff, which they accordingly did.
    
      B. D. Noxon, for the defendant, now moved for a new trial on the following grounds:
    1. No deed was shown by the plaintiff from the patentee. The names of Patterson and Petterson are entirely distinct. (15 John. 226. 10 John. 133. 12 John. 77. 5 John. 84.)
    2. The deed from Petterson to Blanchard was not proved, so as to entitle it to be read; as there were two John Durhams, if not three, either of whom might be the witness. (2 John. Cas. 211. 1 Phil. Ev. 169, 364. 7 T. R. 266. 1 B. & P. 360. 5 Cowen, 383.)
    3. There being two John Blanchards, either of whom might have been the grantee, the plaintiff was bound to identify. (13 John. 518. 5 Cowen, 237. 4 Campb. 34. 1 B. & A. 19.)
    4 The defendant was a bona fide purchaser; and therefore, as to him, the deed from Blanchard and wife to Dan-forth, *(being only a deposited deed,) was void. Such deeds, though deposited, are not notice to subsequent bona fide purchasers. (20 John. 659.)
    5. The defendant was precluded by the judge from going to the jury.
    
      N. P. Randall, contra relied on the following points :
    1. It was the province of the court, not the jury, to decide whether the deed offered in evidence as that of William Patterson, was competent to prove a conveyance from the patentee. (13 John. 518.)
    2. The deed from Blanchard and wife to Danforth, was sufficiently proved to authorize its being read in evidence. The hand writing of one of the subscribing witnesses was proved, that he was out of the jurisdiction of the court; and that the other was either dead or could not be found, on diligent inquiry, where the deed purported to have been executed. In the case of so old a deed, proof of the hand writing of one witness, without accounting for the other, is sufficient. (1 Phil. Ev. 169, 362, 364, note. 11 John. 64.)
    3. The motion for a nonsuit was properly denied. When the plaintiff introduces a deed conveying the premises from a person of the same name with him, who afterwards conveys, it is, prima facie, evidence that such person is the real grantee, and throws the burthen of proving the contrary on the defendant. (13 John. 518.)
    4. The testimony of Durham puts the fact of the execution of the deed from Blanchard and wife to Danforth, beyond a doubt; and it was competent evidence in this cause, and taken without objection. (1 Phil. Ev. 372. 14 East, 328. 7 East, 282, note.)
    5. Even if the sufficiency of the testimony in relation to the conveyance purporting to have been executed by Patterson, should have been left to the jury; yet the defendant waived his right to complain of this, by not insisting upon its being submitted to the jury; and a new trial should not be granted for that cause. (2 Dunl. 679. id. 640. 1 Taunt. 10. 5 Cowen, 127. 13 John. 523. 2 Phil. Ev. 13. 13 John. 504.)
    *6. The defendant not insisting on going t.o the jury, waived the objection taken by him ; and the charge of the judge was correct.
    The counsel also cited 19 John. 80, and 20 John. 478.
   Curia, per Sutherland, J.

The patent to William Patterson, for lot number 43 in the town of Cicero, in the county of Onondaga, of which the premises in question are a part, was duly proved. It bears date on the 13th of Sept. 1790, and passed the secretary’s office the 21st day of March, 1792.

An exemplified copy of the balloting book belonging to the office of the clerk of Cayuga, and filed in that office pursuant to the statute, was also produced and duly proved ;• from which it appeared, that William Patterson drew the lot for his services as a soldier in the revolutionary war, and that the lot was patented to him the 13th of September, 1790. He is described in the balloting book as a private in Hazen’s regiment. The plaintiff next produced a deed for the lot purporting to have been executed by William Petterson, describing him, however in the body of the deed, as William “ Patterson, late a soldier in the revolutionary war, in Hazen’s regiment,” to John Blanchard of the city of New York, gentleman, bearing date the 6th day of December, 1790. This deed was duly acknowledged, and was recorded in the clerk’s office of Onondaga county, on the 8th of June, 1808. It was objected to as not being from William Patterson, the patentee, but from William Petterson. The objection was overruled, and this presents the first point in the case.

In Jackson ex dem. Miner v. Boneham, (15 John. 226,) the name of the soldier to whom the patent was issued, was Moses Minner. The lessors claimed as heirs at law to Moses Miner, and proved that their ancestor was a soldier in the New York line. The court say, the only difficulty in the case arises from the name being spelled Minner instead of Miner. It is evident that the soldier under whom the lessors claim, wrote his name Miner; and if it had been shown that there had been in the army any man by the name of Minner, the patent would be deemed to have issued to him. But nothing of that kind appearing, it must be considered a *mere mispelling of the name, which cannot affect the identity of the person; nor is it such a difference in the spelling as to make it a distinct name.” The difference in sound between the two names in that case, as they are ordinarily divided and pronounced, is greater than in the case now before the court. The letter e is often pronounced broad like a, and the two names when spoken by the mass of ordinary men, in common and rapid conversation, would be pronounced alike. In Jackson v. Boneham, there was no identification of the soldier for whom the patent was intended, except his name. The regiment or company to which he belonged was not shown. In the case at bar, the balloting bo ok, (which is the authority on which the patent issues,) describes the soldier for whom it was intended, as a private in Hazen’s regiment; and the deed describes the grantor therein, as William Patterson, late a private in Hazen’s regiment; reaving no doubt that the grantor meant to represent himself as the person to whom the patent had issued; and it not having been shown that there was any soldier in that regiment by the name of Patterson, I am of opinion that the evidence of identity was, prima facie sufficient. The cases of Jackson v. Stanley, (10 John. 133,) Jackson v. Hart, (12 John. 77,) and Franklin v. Talmadge, (5 John. 84,) have also some bearing on this question.

It would have been competent for the defendant to have shown, that the grantor in the deed to Blanchard was not the patentee intended by the grant from the state. (Jackson ex dem. Shultze, v. Goes, 13 John. 518.)

2. The deed from Blanchard and wife to Asa Danforth was objected to, as not having been sufficiently proved. It bore date of the 27th of March, 1792, and was witnessed by John Durham and Phineas Pierce.

It was proved that Pierce left the state more than twenty •years before the trial, and was said to have died ; and his hand writing was proved. The deed describes the grantors as being of the city of New York. It was proved that diligent inquiry had been made there for the other witness, Durham, and that he could not be found, nor any trace of him discovered there. But the witness subsequently learned *that a man of that name once lived in the city of New York, and afterwards in Newton, Tioga county, where he died. He had also a son of the same name, who died at Newton about a year before the trial. Benjamin Durham testified that his grandfather’s name was John Durham, that he had lived in New York, as the witness understood, and died previous to 1804. The witness’ father’s name was also John Durham, and he was dead. He also produced an instrument purporting to have been executed by John Durham, which the witness understood to be his grandfather’s hand writing. It had been long in his possession ; and he had' no other knowledge of his grandfather’s hand writing than from that instrument. From such knowledge, the witness testified, that he believed the hand writing subscribed to the deed from Blanchard and wife to Danforth, was the hand writing of John Durham, his ' grandfather.

The defendant proved that there were, within a few years before the trial, two men of the name of John Durham living within this state, of the age of between 50 and 60. It also appeared, that there were two men of the name of John Blanchard residing in New York in 1792; and the defendant claimed under a deed from one John Blanchard to Justus McKinstry, bearing date the 7th of November, 1817. The grantor was described as being late of the city of New York; and, in addition to the objection to the proof of the plaintiff’s deed from John Blanchard, it was contended that he was bound to identify the John Blanchard under whom he claimed.

It was undoubtedly necessary for the plaintiff to show, with reasonable certainty, that Durham, the other witness to the deed, was either dead or beyond the jurisdiction of the court. Proof that he could not be found or heard 'of, Upon diligent search "or inquiry; Would be evidence of his death or absence.

If the testimony of Benjamin Durham was admissible, (and it Was not objected to,) it identifies the Witness to the deed, as his grandfather, who died previous to 1804.

1 am inclined to think his testimony was admissible fot that purpose-. He Was in possession of an instrument in the hciñd Writing of his grandfather; and, from the knew* lodge of his hand Writing, acquired from that instrument, Which had been long ih his possession, he believed the hand Writing to thé d-e'éd from Blanchard to Danforth to be his grandfather’s-. If so, his "grandfather was the witness to the deed, and being dead, the proof of the hand writing of the other witness Was sufficient.

But whether competent or not, as it was not "objected to, it must be considered Us received by consent-.

As to the identity of -Blanchard-, the grantee from the soldier, and the grantor in the deed to Danforth, the rüle as laid down by Judge spencer, in Jackson v. Goes, (13 John. 523,) is this: “ Whenever the plaintiff introduces a deed conveying "the premises to & person Of the name of Ms lessor, it is prima facie evidence that the lessor is the teal grantee. The burthen -of disproving this, and -repelling the presumption, is thrown on the defendant ; and -he may prove that it Was -granted to a different -person of the -same haMe.” But it is not sufficient for him tb prove "that there Was another person of the same name. He must prove that he was the person to whom the grant was made; otherwise the prima facie evidence of the plaintiff is not repelled.

It must be entirely immaterial, whether the question of identity relates to the lessor, or to a previous grantee from whom the lessor derives his title. The rulé laid down in Jackson v. Goes is expressly recognized and reiterated in Jackson v. King, (5 Cowen, 241.)

The defendant cannot now object the doctrine of Wendell v. Wadsworth, (20 John. 659,) that the deposit of the deed from Blanchard to Danforth was not notice to subsequent bona fide purchasers. The question of notice Was not raised at the trial. If any objection had been taken by the defendant on that ground, non constat, but actual notice might have been brought home to him.

The counsel were not precluded from golttg to the jury. The case states that the counsel for the defendant rose to address the jury, when the judge stated his views of the case, and remarked, in conclusion, that he should charge the jury that the plaintiff was entitled to recover five ninths of the premises in question; upon which the defendant’s counsel *omitted to sum up the cause. This was a voluntary, not a compulsory relinquishment of his right to address the jury.

The motion for a new trial must be denied.

New trial denied. 
      
       If a witness cannot be found after diligent inquiry, it is the same as if he were dead. Jackson v. Chamberlain, 8 Wen. 620. Spring v. The South Carolina Co., 8 Wheat. 269. Or, if he is out of the jurisdiction of the court, it is sufficient to authorize proof of his hand writing. Teall v. Van Wyck, 10 Barb. 376.
      As to what shall amount to diligent inquiry, see per Tract, Senator, in Jackson v. Waldron, 13 Wen. 199. Pettereau v. Jackson, 11 id. 110, 111, 123. Per Kent, C. J., in Jackson v. Beerton, 11 John. 65. Conrad v. Farrow, 5 Watts, 537. Cunlifie v. Sefton, 2 East, 183. Crosby v. Percy, 1 Taunt. 365. Morgan D. Morgan, 9 Bing. 359. Evans v. Curtis, 2 Carr. & P. 296. The rules and practices of the court leave this point latitude of discretion, 11 John, supra, and this discretion is the subject of review, 13 Wen. supra. In 2 Cowen. & Hill’s notes to Phil. Ev. 382 et seq. this subject is treated at length, and a synopsis of all the judicial decisions thereon given.
      The necessity of actual inquiry may be superseded by presumptions arising from circumstances. Thus when an attested instrument is executed in another state, the witness is presumed to be beyond the jurisdiction of the court. Barfield v. Hewlett, 4 Mill. Low. Rep. 118. Crouse v. Duffield, 12 Mart. Low. Rep. 539.
      In some cases the amount of diligence required, depends on the value of the instrument. 1 Taunt. 364, 5, 6. But this distinction has been repudiated by Lord Ellenborough. Wardell v. Fermor, 2 Camp. 282, 284. But an evident design of the witness to withhold his testimony from the party seeking it, will dctefmine in many caaes, as to the necessity of further inquiry. Baker v. Blount, 2 Hayw. 404. See Kay v. Brookman, 3 Carr. & P. 555, 2 Cowen & Hill’s notes, 385. Especially if -there "be good reason to suppose it is attributable to collusion with the-other party. Mills v. Twist, 8 John. 121. Hill 8. Phillips, 5 Carr. & P. 359.. And this, if clearly shown, is sometimes, in itself sufficient. See Prytt v. Moore, 6 Moore, 539. Per Heath J., in Gipson v. Minet, 1 H. Black. 623. Per Haywoob, in Ingram 8. Hall, 1 Hayw. 207. Hearsay is evide'nbe tif death, subject precisely to the same fixles "arid restrictions" ah in relation to pedigree. See Fosgate v. Herkimer, Man. & Hydraulic, Co. 12 Barb. 353, 358. An'ohitubry notice, in a nbws. paper published in this state is not evidence of a death of a person in another state.-S. C. 9 id. 287.
     
      
       See Jackson v. Brooks, 8 Wen. 426. S. C. 15 Wen. 111. Stother v. Lucas, 6 Peters, 769. Jackson v. Kip, Anth. N. P. 105. See further, 2 Cowen & Hill’s notes to Phil. Ev. 493, Note, 260.
     