
    M’Murtry, &c. vs. Frank, &c.
    July 6.
    
    Error to the Bath Circuit; Silas W. Robbins, Judge.
    Debt. ^ase
    
      Evidence, Writings, Witness.
    
    On the trial oftheissue on tum, where there i.s a ^¡tnessto the writing, othi er evidence Is n°* comPc* tent to prove its execution, without ac-h°su^Sg|(i°r as ¿at is dead, out of thejunsdic-court or Hk".
    
      Triplett, for plaintiffs; Sharp, for defendants-
   Judge Davidge

delivered the opinion of a special Court, composed by consent of parties, of himself and Judge Thimble.

THIS was an action of debt brought on a writing commonly called a single bill. Plea, non est factum,; verdict and judgment for the plaintiffs; a new trial moved for and overruled; a bill of exceptions taken, and the evidence made part of the record. It appears that there was a subscribing witness to the writing de-dared on; that he was not produced, nor was any excuse made for not producing him; but the writing was allowed to be proved by other testimony and read to , I . r 1 J J ene jury.

It is a general rule, where there is a subscribing witness to an instrument of writing, he ought to be called to prove its execution, or some account given of him, as being dead, out of the jurisdiction of the court, or the like, or secondary evidence cannot be received to prove the execution of the writing. This general rule is so universally acknowledged and acted upon that we deem it unnecessary to multiply authorities in support of it. The case of Creighton vs. Johnson, Litt. Sel. Ca. 240, is, however, a strong case in point.

We have not deemed it necessary to notice the other points that have been made by the assignment of errors, as they may not occur on another trial of the' cause.

The judgment must be reversed with costs, the cause remanded to the court below for new proceedings to be had not inconsistent with this opinion.  