
    Mills and another against Twist.
    Where the wittm^contraet'*’* whoexecutedthe contract, amlthe plaintiff, the day before thesitting of the circuit, inquired of the defendantforthe de^to5 “oía "hy defendant that they were gone on a journey; thiswas held not to be a sufficient reason for admitting other testimony of the hand-writing; the plaintiff not having used sufficient diligence to procure the witnesses.
    THIS was an action of assumpsit. The action was founded on a written contract, to the execution of which there were two subscribing witnesses, who were the sons of the defendant.
    At the trial, at the Washington circuit, in 1809, the ° _ _ plaintiff proved that the defendant lived 16 miles from , , , r , . the county court-house; that one or the witnesses was under age, and lived with the-.defendant, and the other worked in a shop at a short distance from the defendant’s house. On Mondau, before the trial, the plaintiff ■' 1 went with a subpoena, and inquired of the defendant, for his two sons, the witnesses, and the defendant said they had gone, a few days before, on a journey to the westward, and he did not know when they would return: The plaintiff proved, that one of the witnesses was seen at the defendant’s house, in the morning of the day he called, or during the evening before; and an officer was employed on Tuesday, the next day, to make diligent search for them, in order to serve the subpoena, and that the witnesses could not be found. The plaintiffs, who resided in Connecticut, then offered other testimony to prove the contract; and also offered parol-evidence of the agreement, but this was objected to by the defendant’s counsel, and rejected by the judge, and the plaintiffs were nonsuited. A motion was made to set aside the nonsuit, which was submitted to the court without argument.
   Per Curiam.

The proof that the witnesses to the written contract could not be found, was too loose to let in the secondary evidence of proof of their hand-writing. There is no case that has relaxed the rule to this length. The witnesses lived in the same county, and the party never attempted to subpoena them until the day before the court. All the proof that the party kept them out of fhe way, is, that he endeavoured to deceive the person who called, by falsely telling him they had gone on a journey. This would have been a sufficient excuse for not bringing on the trial; and might, perhaps, have been ground for a rule of this court to help the party, if the same deception should be repeated. One of the witnesses did not live with his father, and appears to have been of age, and not under his control. The cases of Cunliffe v. Lefton, (2 East, 183.) and of Crosby v. Percy, (1 Taunt. 364.) are the strongest in favour of a relaxation of the rule; and they do not, by any means, reach this case. The party is bound to show that he has made fair and diligent inquiry, and c annot procure the witness. Here was not timely and sufficient diligence used.

The attempt to prove a parol contract like the one in writing, after failing to prove the latter, was contrary to the settled rules of law, and the motion to s.et aside the nonsuit must be denied,

Motion denied.  